Ob'Saint v. Warden, Toledo Correctional Inst.

• Citation: 675 F.Supp.2d 827
• Decision Date: 21 December 2009
• Docket Number: Case No. 1:08-cv-640.
• Parties: Evans OB'SAINT, Petitioner, v. WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

675 F.Supp.2d 827

Evans OB'SAINT, Petitioner, v. WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:08-cv-640.

United States District Court, S.D. Ohio, Western Division.

December 21, 2009.

Evans A. Ob'Saint, Toledo, OH, pro se.

Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, for Respondent.

ORDER

SANDRA S. BECKWITH, Senior District Judge.

Petitioner Evans Ob'Saint has filed objections to the Magistrate Judge's Report and Recommendation concerning Ob'Saint's petition for habeas corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge has recommended that this Court deny all claims raised in the petition. (Doc. 20)

FACTUAL BACKGROUND

Ob'Saint was indicted by an Ohio grand jury for aggravated robbery, in violation of Ohio Rev.Code 2911.01(A)(1), with two firearm enhancement specifications. He was also charged with one count of robbery under Ohio Rev.Code 2911.02(A)(2). As found by the Ohio Court of Appeals in rejecting Ob'Saint's direct appeal,

... [Ob'Saint] entered a PNC bank and handed a teller a note that read, "Read silently. If you look at me again, I'll shoot. If you activate an alarm, my time piece will vibrate and I'll shoot you first, trust me. Quickly remove any dye packs and give me all the money. Hand me back that letter, smile, say thank you and walk to the employee's bathroom. Don't turn around. Don't try me or you'll be sorry forever.

The teller did not see Ob'Saint make any movements to indicate that he was holding or reaching for a gun, but she believed that he had a gun and complied with his instructions. Ob'Saint left the bank with money and a GPS tracking device that had been planted in a currency pack. The police located and arrested him later that day, as he was taking the cash out of a vehicle. Ob'Saint made a full confession and was cooperative with the investigating authorities, but he denied actually having a gun. He consented to a search of his apartment, where deputies found the clothing he wore during the robbery and the note he had given to the teller. No gun or any evidence of a firearm was ever located.

Ob'Saint waived a jury, and at his trial the state presented two witnesses—the police investigator and the bank teller. Ob'Saint argued before trial and in his motion for acquittal that there was insufficient evidence to support the aggravating element of robbery as well as the firearm specifications. The trial court denied his motion for acquittal and found him guilty on all charges and specifications. At sentencing, the counts and the specifications were merged, resulting in a total sentence of six years on the aggravated robbery, with a three-year consecutive sentence on the firearm specification. Ob'Saint's appeal and his state court post-conviction petitions were all unsuccessful.

Ob'Saint's petition under 28 U.S.C. § 2254 raises two grounds for relief. He contends that his conviction under Ohio's firearm specification statute is based upon insufficient evidence that he possessed an operable firearm during the robbery, thereby violating his due process rights. He also contends he was denied due process because the state courts disregarded the bank teller's testimony that she did not see a weapon nor view any conduct indicative of Ob'Saint's possession of a weapon.

The Magistrate Judge concluded that neither ground for relief is meritorious. Regarding the first claim, the Magistrate Judge cites the Ohio appellate court's exhaustive review of Ohio law concerning the type and amount of evidence necessary to prove aggravated robbery with firearm specifications. Applying the principle that a federal habeas court independently reviews the state court record to analyze a claim of sufficiency of the evidence, the Magistrate Judge concluded that the evidence was sufficient to prove the charges against Ob'Saint beyond a reasonable doubt. (Doc. 20 at p. 15.)

The Magistrate Judge also found that Ob'Saint's second claim lacks merit, because the state court explicitly addressed the bank teller's testimony that she did not see a gun nor observe any conduct suggesting a gun. The Ohio Court of Appeals concluded that she did not have the opportunity to see if Ob'Saint was armed, and that her lack of observation did not establish a reasonable doubt whether or not Ob'Saint had a gun in his possession when he robbed the bank.

DISCUSSION

Under 28 U.S.C. § 2254(d), Ob'Saint must establish that the result reached by the state court in affirming his conviction and sentence enhancement was contrary to clearly established federal law, or resulted from the state court's unreasonable determination of the facts and evidence presented at his trial.

A claim of insufficient evidence that rises to the level of a constitutional due process violation requires Ob'Saint to establish that no rational trier of fact could have found him guilty beyond a reasonable doubt of the essential elements of the firearm specification. See Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A federal habeas court does not reweigh the evidence adduced at trial, nor judge anew the credibility of witnesses. The state need not have ruled out all other scenarios except that of guilt beyond a reasonable doubt, in order to satisfy the due process standard. If there are conflicts in the evidence or conflicting inferences arising from the facts, the court must presume that the trier of fact resolved those conflicts in favor of the state, and defer to that decision. Id. at 326, 99 S.Ct. 2781.

Ohio Rev.Code 2911.01(A)(1), of which Ob'Saint was found guilty, defines aggravated robbery: "(A) No person, in attempting or committing a theft offense ... or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]" The Ohio firearm sentence enhancement specification statute requires the state to prove "that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." Ohio Rev.Code 2941.145(A). "Firearm" is defined as

... any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.

The same statute provides that the fact-finder may rely upon circumstantial evidence to determine whether a firearm was operable, including any "representations and actions of the individual exercising control over the firearm." Ohio Rev.Code 2923.11(B)(1) and (2).

In State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), the Ohio Supreme Court rejected a defendant's argument that the state had failed to prove that the gun he displayed during a robbery was operable as required by the specification statute. The Supreme Court held that the elements of the statute

... can be proven beyond a reasonable doubt by circumstantial evidence. In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being readily rendered operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm.

Id., Syllabus ¶ 1. Thompkins robbed a bakery by pointing a gun directly at the store clerk, telling her he was committing a "holdup" and to be "quick, quick." She put $800 in a bag and gave it to Thompkins, who fled the store. The gun was never recovered, and the clerk testified that Thompkins never threatened to shoot her. The Supreme Court found that since Thompkins brandished a gun and "implicitly but not expressly" threatened to shoot the clerk if she did not cooperate, the implicit threat can be sufficient to prove that the firearm was operable. Id. at 384-385, 678 N.E.2d 541.

As the Magistrate Judge's Report discusses, numerous Ohio appellate decisions have addressed a variety of factual scenarios in analyzing the sufficiency of the evidence supporting a firearm specification conviction. In State v. Belcher, 2007-Ohio-6317, 2007 WL 4200668 (8th Dist. App.2007), the victim felt what she believed to be a gun pressing against her back, testified that she saw a gun weighing down the front of her attacker's hooded jersey, and that the attacker told her "I have a gun, bitch, let go of the purse." That testimony was sufficient to support both elements of the firearm enhancement specification despite the fact that the victim did not actually see a gun, defendant did not threaten to shoot her, and a gun was never found or produced at trial. Similarly, in State v. Jeffers, 143 Ohio App.3d 91, 757 N.E.2d 417 (1st Dist.App. 2001), the robbery defendant kept his hand in his pocket and told the store clerk that he would "blow [her] head off" if she did not comply with his demand for money. That evidence was sufficient to prove both elements of the firearm specification, despite the fact that the defendant never displayed a gun.

And in State v. Greathouse, 2007-Ohio-2136, 2007 WL 1297181 (2nd Dist.App. 2007), a robbery and rape victim testified that defendant approached her from behind, poked her in the back and forced her into the car, telling her he had a gun and would shoot her and dump her body. The court affirmed his conviction on a firearm specification even though the victim never saw a gun, as the circumstantial evidence surrounding the crime was sufficient to prove the specification beyond a reasonable doubt. See also State v. Green, 117 Ohio App.3d 644, 691 N.E.2d 316 (1st Dist. App.1996), where the...