On April 26, 2013, the Hamilton County Grand Jury indicted Bates on one count of aggravated robbery with firearm specifications in violation of Ohio Revised Code § 2911.01(A)(1)(Count 1); one count of robbery in violation of Ohio Revised Code § 2911.02(A)(2)(Count 2); one count of tampering with evidence in violation of Ohio Revised Code § 2921.12(A)(1) (Count 3); one count of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(2)(Count 4); one count of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(2)(Count 5); one count of carrying concealed weapons Ohio Revised Code § 2923.12(A)(2)(Count 6); one count of improperly handling firearms in a motor vehicle Ohio Revised Code § 2923.16(B)(Count 7); one count of having weapons while under disability Ohio Revised Code § 2923.13(A)(3)(Count 8); one count of carrying concealed weapons Ohio Revised Code § 2923.12(A)(2)(Count 9) and one count of felonious assault in violation of Ohio Revised Code § 2903.11(A)(2) with specifications.
Following a jury trial, Bates was found guilty of Counts 1-9 and not guilty on Count 10 and was sentenced to an aggregate term of sixteen years on December 12, 2013. (State CourtRecord, ECF No. 5, PageID No. 60.)
Bates, through counsel, appealed to the Court of Appeals of Ohio, First Appellate District, Hamilton County, raising the following assignments of error:
1. The Trial Court erred by allowing the jury to hear inadmissible and highly prejudicial evidence about Mr. Bates's character.
2. The Appellant's convictions are against the weight and sufficiency of the evidence.
3. The Trial Court erred by failing to merge Mr. Bates' convictions for various weapons charges.
(Appellant's Brief, State Court Record, ECF No. 5, PageID No. 65.)
The First District set forth the facts of this case on direct appeal as follows:
[¶4] Timothy Johnson was working as a confidential informant for the Cincinnati police. Following the instructions of his police handlers, he arranged to purchase three firearms from Kevin Bates, a man whom Mr. Johnson had identified to the police as a "gun guy." The sale was to take place at a gas station. To facilitate the deal, Officer Howard Fox supplied Mr. Johnson with over $300 that had previously been photocopied by the police. Mr. Johnson was also equipped with a police-provided cell phone and a hidden video recorder.
[¶5] When it came time for the deal, Mr. Bates told Mr. Johnson that the gas station was too busy, so he drove Mr. Johnson to a side street. When they arrived, Mr. Bates left the car saying he needed to get the firearms from his girlfriend's apartment.
[¶6] Mr. Johnson waited in Mr. Bates's parked car. After some time, Mr. Bates called to say that he was on his way back from his girlfriend's apartment. Minutes later, two men with guns approached the car. The hidden video recorder captured the incident. The men searched Mr. Johnson and threatened to shoot him. In addition to taking money and two cell phones from Mr. Johnson, the men discovered the video recorder, ripped it from his body and discarded it.
[¶7] Some ten to 15 minutes later, Mr. Bates came back to the car, and Mr. Johnson told him that he had been robbed. Notably, Mr. Bates did not have firearms with him when he returned to the car.
Mr. Bates then drove Mr. Johnson back to the gas station and left him, telling him he would find out who had committed the robbery.
[¶8] Back at the gas station, Mr. Johnson told Officers Fox and Rebecca Napier that he had been robbed. The police officers issued a description of Mr. Bates's car. Officers in two unmarked police cars tailed Mr. Bates. Officer Joshua Fehrman, who was in an unmarked SUV, testified that he saw Mr. Bates pull over to allow two men to get into his car. Eventually, the two unmarked police cars managed to stop Mr. Bates's car.
[¶9] Officer Steve Mittermeier was in the other unmarked car. He testified that as he and Officer Charles Bell walked up to the car with their weapons drawn, he spotted Mr. Bates in the driver's seat, pointing a gun at him. Officer Mittermeier stated that the gun went "across the dashboard" and disappeared from sight. Officer Bell testified that he also saw Mr. Bates pointing a gun at him as the officers approached the car.
[¶10] Mr. Bates and his two passengers, later identified as Harold Chandler and Tywon Reliford, were removed from the car. A weapon was found in Mr. Chandler's waistband, and Officer Mittermeier retrieved a revolver from the floor of the car under the steering wheel. In addition, police officers recovered all but a $20 bill of the money that had been photocopied earlier by Officer Fox. Mr. Johnson later identified Messrs. Chandler and Reliford as the men who had robbed him.
[¶11] In his statement to police officers, Mr. Bates admitted that he had arranged a gun sale with Mr. Johnson. But he denied that he had set up the robbery. Messrs. Chandler and Reliford told a different story. Both testified that Mr. Bates had orchestrated the robbery. Mr. Reliford stated that Mr. Bates had provided both guns that were used in the robbery, while Mr. Chandler only could be certain that his gun had been provided by Mr. Bates. The stories of all the men differed on details about who knew whom first, who was in the car first and where the guns were handed to Messrs. Chandler and Reliford.
[¶12] Mr. Bates was indicted for aggravated robbery with firearm specifications, robbery, carrying a concealed weapon, having a weapon while under a disability, improperly handing a firearm in the car and felonious assault. The jury found him guilty of all the charges except felonious assault. The trial court merged theaggravated-robbery count with the robbery count and sentenced Mr. Bates to an aggregate sentence of 16 years in prison.
State v. Bates, 2015-Ohio-116, 2015 Ohio App. LEXIS 104 (1st Dist. Jan. 16, 2015).
On January 16, 2015, the First District Court of Appeals affirmed in part and reversed in part the judgment of the trial court. The Court of Appeals reversed the conviction for carrying a concealed weapon and modified the sentencing entry to reflect the reversal. Since the trial court ran the vacated sentencing concurrent with the improper handling of a firearm sentence, the aggregate sentence remains unchanged. Id.
Bates, through his appellate counsel, filed a timely appeal to the Ohio Supreme Court raising the following propositions of law:
1. Courts must merge allied offenses for which the state relied on the same conduct to obtain a conviction.
2. The court must exclude inadmissible, prejudicial, and irrelevant evidence aimed at inflaming the jury and not at providing actual evidence of guilt.
3. It is ineffective assistance of counsel for an attorney to invite and fail to object to prejudicial error.
4. When based on inherently unreliable and incompatible witness testimony that contradicts DNA evidence, a conviction is against the weight and sufficiency of the evidence.
(Appellant's Memorandum in Support of Jurisdiction, State Court Record, ECF No. 5, PageID No. 123).
On August 26, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Bates, 143 Ohio St.3d 1441 (Ohio 2015). Bates, through his counsel, filed a motion for reconsideration which the Ohio Supreme Court declined. State v. Bates, 143 Ohio St.3d 1503 (Ohio 2015). Bates then filed the instant habeas corpus petition on December 20,2015.1
