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State v. Sewell

Court of Appeals of Ohio, Second District, Montgomery

May 25, 2018

STATE OF OHIO Plaintiff-Appellee
v.
KENNETH L. SEWELL Defendant-Appellant

          Trial Court Case No. 2015-CR-3390 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          ENRIQUE G. RIVERA-CEREZO, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, P.J.

          {¶ 1} This case is before us on the appeal of Defendant-Appellant, Kenneth Sewell, from his conviction and sentence for robbery, following a bench trial. In support of his appeal, Sewell contends that the court erred in denying his motion for acquittal under Crim.R. 29(A), and that his conviction was against the manifest weight of the evidence. Sewell further contends that he received ineffective assistance of counsel when his trial counsel failed to request a bill of particulars and failed to cross-examine a key State witness.

         {¶ 2} We conclude that the trial court did not err in denying Sewell's motion for acquittal. Sewell had notice of the robbery charge against him pursuant to the indictment, and the State did not commit to a specific theory of the case during opening statement with respect to whether the underlying theft offense for robbery was of a backpack or of a lighter, or both. Furthermore, during its case, the State presented sufficient evidence to prove that Sewell had intent to deprive the victim of a lighter, and that Sewell caused physical harm to the victim as he committed the theft or was fleeing immediately after the theft. The State also did not change its theory of the case during trial.

         {¶ 3} We further conclude that the conviction for robbery was not against the manifest weight of the evidence. The trial judge was the fact-finder and found the victim credible. In contrast, the trial judge did not find Sewell credible. We defer to the trier of fact on credibility issues, and there was no manifest miscarriage of justice.

         {¶ 4} Finally, trial counsel did not provide ineffective assistance of counsel. Assuming for purposes of argument that trial counsel should have filed a motion for a bill of particulars, there is no reasonable probability that the result of the trial would have been different. Sewell did not deny striking the victim; his defense was that the lighter that was allegedly taken belonged to him. However, the trial court did not find Sewell credible. In addition, trial counsel did not provide ineffective assistance by discontinuing his cross-examination of the victim with respect to ownership of the lighter. While the victim had a hearing problem and some difficulty in communicating, he clearly indicated the facts as to his ownership of the lighter during both direct and cross-examination. Moreover, in view of the trial court's credibility decisions, there is no reasonable probability that the result of the trial would have been otherwise if counsel had persisted. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 5} On February 2, 2016, an indictment was filed charging Sewell with one count of robbery (physical harm), in violation of R.C. 2911.02(A)(2), a second degree felony. Sewell pled not guilty to the charge in September 2016, and trial was ultimately set for March 28, 2017. On the day of trial, Sewell filed a waiver of jury trial, and the court conducted a bench trial.

         {¶ 6} At trial, the State presented testimony from the following individuals: two employees of the Greater Dayton Regional Transit Authority ("RTA"); the director of security for the Schuster Center; the alleged victim of the robbery; and two officers of the Dayton Police Department ("DPD"). The evidence that the State presented indicated that on November 4, 2015, Amy Davis was working as a transit ambassador for the RTA and was stationed at the Wright Stop Plaza (also called the "Hub") in downtown Dayton, Ohio. As part of her duties, Davis walked around the Hub helping people get on buses and seeing to passenger safety. She also walked along the street in the general area to make sure no one was smoking against the RTA building.

         {¶ 7} On November 4, 2015, Davis was watching a group of four people who were huddled together on the platform and were acting a little strange. These four individuals were later identified as Kenneth Sewell and three of his friends, Deonte, Adara, and Tion. At the time, Sewell was wearing turquoise scrubs, Deonte was wearing a black hat, and Adara had on a red Ace Hardware vest.

         {¶ 8} Davis followed these four individuals as they walked away from the platform and down Main Street, toward Third Street. While they were walking down Main Street, Davis saw the group encounter an older man and begin to converse. The older man was Stanley Rutlin, and he was wearing a black backpack. Davis knew Rutlin by name because he was a regular at the Hub. Although Rutlin was deaf, Davis was able to communicate with him because Rutlin could read lips. Davis could not tell what the people were saying, but she saw one of the individuals (not Sewell) holding something above Rutlin's head, and saw Rutlin trying to get the object from that person. Davis stated that the individuals were holding something away from Rutlin.

         {¶ 9} After this occurred, Davis saw Sewell and Rutlin circling each other. Rutlin set his backpack down, and he and Sewell began throwing punches at each other. Davis saw Sewell hit Rutlin in the mouth and saw Rutlin attempt to hit Sewell, but Rutlin never actually made contact. At that point, Davis called Gerry Gustin, who was the RTA manager of safety and security, to let him know there was a fight on the corner of Third and Main Streets. She also alerted RTA dispatch, because some DPD officers were specifically assigned to the Hub.

         {¶ 10} Davis saw Sewell grab a backpack and run across Third Street. As soon as Gustin received Davis's call, he ran out the Third Street doors of the Hub. Davis pointed to an individual wearing turquoise scrubs (Sewell), who was going down the sidewalk holding what appeared to be a book bag. Gustin ran after Sewell and made eye contact with him. Sewell turned north through a parking lot and then ran up an alley that went back towards Main Street. During the pursuit, Gustin fell off a little concrete wall, and by that time, Sewell had a good lead. Gustin also had a muscle disease and did not have good running abilities.

         {¶ 11} Gustin could see Sewell across Main Street, going in the direction of the Schuster Center. However, when he looked up again, Sewell was gone. While running in the direction where he had last seen Sewell, Gustin happened on an alley that went down to the Schuster Center. The alley contained an open entrance into a parking garage. After entering the garage, Gustin saw some items that looked like they had been dumped on the ground, but did not touch them. He then went up an elevator and exited on the ground floor of a building (Performance Place) that is located next to the Schuster Center and contains apartments and offices. The elevator that Gustin took did not contain any discarded items, but Rutlin's backpack was later found in an elevator at the Schuster Center. Gustin had no further contact with Sewell.

         {¶ 12} There are camera security systems in the Schuster Center, at the Arts Garage on Ludlow Street, at the Victoria Theater, and at Performance Place, which is the tower that houses residences and some law offices. After speaking with a police officer on November 4, 2015, Braxton Gilkey, the director of security for the Schuster Center, checked the security footage for the Performance Place alley and garage. Gilkey then made two still photos. One photo was of a man in turquoise clothing in the alley next to Performance Place, and the other was of a man in turquoise clothing inside the lower level of the parking garage. Because the camera revolved, Gilkey had to capture a picture of the man when he was in view of the camera.

         {¶ 13} Rutlin also testified, and there was some difficulty in understanding him because he was deaf. Rutlin stated that on November 4, 2015, he was at the RTA Hub and was walking downtown, on Third and Main Streets. He was walking with someone and talking, but that person left to go to work. Subsequently, Sewell and his friends came up to Rutlin, and one of Sewell's friends (later identified as Deonte) asked to use Rutlin's lighter. Rutlin gave Deonte the lighter to use, but Deonte did not give it back. Sewell then took the lighter from Deonte and also did not give it back. Rutlin told Sewell to give him back his lighter, but Sewell would not give it back. Sewell kept moving around. Sewell then put up his fists. When Sewell did that, Rutlin took off his backpack and put it down next to him. He told Sewell to "come on and do this, " because Sewell would not give him back his lighter. Sewell then hit Rutlin in the face with his fist. Rutlin stated that Sewell hurt him and that he had a sore inside his mouth as a result.

         {¶ 14} After Sewell hit Rutlin, Sewell was running around and took Rutlin's backpack. Rutlin saw Sewell running over the streets, by a bank, and through a parking lot. The police then came and put Rutlin in a cruiser. They also chased Sewell. Rutlin did not see Sewell again, but the police later returned the backpack, and nothing in the backpack was missing. Rutlin further stated that he had purchased the lighter at a store and had not been near Riverscape that day.

          {¶ 15} Shaun Olinger, a DPD officer, was assigned to the RTA Hub on an overtime contract on November 4, 2015, and was working with another DPD officer patrolling the block encompassed by the RTA. At about 1:30 p.m., Gustin told Olinger that a robbery had taken place and that a gentleman had taken off with a backpack. Olinger received a description that the man was dressed in blue scrubs and was going northbound, which would be up toward Main Street. After retrieving his patrol car, Olinger traveled westbound onto Third Street toward Main Street. When Olinger reached Ludlow Street, he saw a man (later identified as Sewell), and assumed Sewell had seen his cruiser, because Sewell took off at a dead sprint. Sewell was in the area of Second Street and Ludlow Street, about a block away. Because Ludlow was a one-way street, Olinger activated his lights and went the wrong way on Ludlow to pursue Sewell. He then apprehended Sewell at 34 West Second Street, near Boston Stoker.

         {¶ 16} When Olinger first saw Sewell, Sewell did not match the original description, as he was not wearing turquoise or blue scrubs; he was wearing black pants and a black shirt. Olinger stated that it was obvious that Sewell had been running - and not just from seeing Olinger, as Sewell was sweating and had an elevated heartbeat.

         {¶ 17} After Olinger apprehended Sewell, an additional call was received from the Schuster Center, where a backpack had been found. Subsequently, Olinger met with Rutlin, who confirmed that nothing was missing from the backpack. Olinger then returned the backpack to Rutlin.

         {¶ 18} On November 5, 2015, DPD Detective Doug Hall became aware of the robbery. Hall met with the alleged victim, Rutlin, who explained what had happened. Hall took photos, which demonstrated a cut, abrasion, and some redness inside Rutlin's mouth. Hall then went to the jail, where Sewell was being held on a robbery charge. After Sewell's rights were read to him, Sewell indicated he was willing to talk. Sewell told Hall that he had missed an appointment the previous day and had decided to hang out at the RTA with some friends. According to Sewell, Rutlin was badgering Sewell and his friends and wanted a lighter. Sewell stated that he kept telling Rutlin no, that he was not going to give him a lighter. Eventually, they engaged in a fight, with Rutlin taking the first swing. As a result, Sewell decided to defend himself.

         {¶ 19} Sewell indicated he had taken the backpack to get Rutlin to stay away from him. He said he had not taken anything from the backpack and had discarded it somewhere.

         {¶ 20} After speaking with Sewell, Hall viewed videos of the incident obtained from RTA cameras and police cameras, and spoke with RTA employees, including Davis and Gustin. He also obtained a couple of still photos from Gilkey. At trial, Hall indicated that Sewell had property in his possession when he was arrested. Hall was most concerned with any cigarette lighters. Sewell had said he had two lighters when he came into the jail, and two separate lighters had been logged into the property room. Hall took pictures of two BIC lighters that he recovered from the property room after questioning Sewell.

         {¶ 21} After the State rested, Sewell moved for a Crim.R. 29(A) acquittal, alleging that the State failed to present the lighter theft as a basis for the robbery charge during opening statement. Sewell also maintained that the alleged theft of the backpack could not sustain a robbery conviction because of the lack of evidence that physical force was used in connection with the backpack. The trial court agreed with the latter proposition and granted the motion with respect to the backpack. However, the court concluded that there was sufficient proof of the physical fight over the lighter and overruled the motion for acquittal on this basis.

         {¶ 22} As was noted, Sewell offered his own testimony at trial. Sewell claimed that the lighter belonged to him. His story was that he and his friends had encountered Rutlin earlier in the day at Riverscape. At that time, Rutlin walked up to them and asked if anyone had a lighter. Deonte had Sewell's lighter at that point, and let Rutlin use it. Sewell then started talking to Adara (the woman in the Ace Hardware vest), and lost track of Rutlin. Subsequently, Sewell noticed that Rutlin was gone. When he asked Deonte if he had gotten the lighter back, Deonte said, "Oh, my bad." Transcript of Trial Proceedings, p. 182.

         {¶ 23} Eventually, the four friends went to the Hub area. They were there for about ten to fifteen minutes before seeing Rutlin. At that point, they had walked up Main Street towards Third and Main. Rutlin was walking west on Third Street, and Deonte recognized him as the man who had Sewell's lighter. When they arrived at the corner of Third and Main Streets, Deonte asked Rutlin if he could use his lighter. In response, Rutlin pulled out Sewell's lighter. According to Sewell, he quickly noticed that the lighter belonged to him because his initials are on the bottom of all his lighters. Sewell described a process by which he scratches his initials, "K.S, " on the bottom edge of all his lighters by using his fingernails.

         {¶ 24} Deonte got the lighter from Rutlin and used it to light a cigar that the group of friends intended to share. Sewell walked past Rutlin and told him that the lighter was his because he had noticed his initials. Sewell then took the lighter from Deonte. They were laughing at Rutlin because he kept "going off"; Rutlin wanted the lighter back, and they were not giving it to him. Sewell admitted holding the lighter in his hand and said he had no intention of giving the lighter back to Rutlin because he (Sewell) owned the lighter. Sewell told Rutlin that the lighter was the one Rutlin had gotten from them at Riverscape.

         {¶ 25} According to Sewell, Rutlin tried to fight him to get the lighter back. Sewell admitted punching Rutlin in the face. Sewell also said he eventually picked up the backpack and ran away because he was trying to get away from Rutlin. Sewell further said that he knew Rutlin was chasing him, but was unaware that he was being chased by anyone else. Sewell admitted running into the garage at Performance Place because he had seen the police and was trying to hide and get away. And finally, Sewell admitted changing out of his blue scrubs.

         {¶ 26} Two lighters were found in Sewell's pocket when he was arrested. One was a tall red BIC lighter and the other was a smaller BIC lighter. As to the presence of these two lighters in his pocket, Sewell claimed the smaller lighter was one he had borrowed from Adara that did not work. On rebuttal, Hall presented the two lighters that he had retrieved from the property room and demonstrated that the smaller lighter, in fact, was operational. Hall also testified that he could not see any initials scratched on the taller lighter (the one in dispute), nor could he see any markings that did not appear to be part of the original packaging. On surrebuttal, Sewell stated that he was having difficulty seeing the mark he made in the plastic part of the lighter. He then looked at the lighter with a magnifying glass and stated that he could see a scratch on the plastic.

         {¶ 27} After hearing the evidence, the trial court found Sewell guilty of robbery and imposed community control sanctions, including intensive probation supervision for up to five ...


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