State v. Carradine
| Decision Date | 10 September 2015 |
| Docket Number | No. 101940.,101940. |
| Citation | 38 N.E.3d 936 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Robert CARRADINE, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Joseph V. Pagano, Rocky River, OH, for Appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor, Owen M. Patton, Assistant Prosecuting Attorney, Cleveland, OH, for Appellee.
Before: KEOUGH, P.J., E.A. GALLAGHER, J., and S. GALLAGHER, J.
{¶ 1} Defendant-appellant, Robert Carradine, appeals his convictions and sentence. For the reasons that follow, we affirm.
{¶ 2} In May 2014, Carradine was named in a seven count indictment for his involvement in a robbery of a corner store on Cleveland's east side. He was charged with aggravated robbery, robbery, aggravated burglary, burglary, and felonious assault. These five offenses included both one- and three-year firearm specifications. Carradine was also charged with carrying a concealed weapon and a having weapon while under disability. All seven charges carried a specification for forfeiture of the firearm involved. Carradine elected to bifurcate the carrying a concealed weapon and having a weapon while under disability counts, trying those charges to the bench. The remaining counts were tried to the jury where the following relevant evidence was presented.
{¶ 3} In the early evening of April 16, 2014, Joel Latimore was tending his corner store on Coit Road and Idarose Avenue while talking to two regular patrons who were sitting in the store. Latimore was sitting behind the counter when a young male, later identified as Carradine, walked into the store and stood back by the soda pop cooler. About two seconds later, another young male walked into the store, approached the counter, pointed a gun at Latimore's head, and said “You know what it is.” Latimore reacted by hitting the male's hand with such force that the male fell to floor. Latimore then fired his .38 revolver at the gunman. Whether the bullet struck the gunman is unknown, but he got up off the floor and fled.
{¶ 4} After hearing his patron, Woodward Hunt, accuse Carradine of being with the gunman, Latimore ordered Carradine, by gunpoint, to lay on the ground. Carradine repeatedly denied being with the other male and complied with Latimore's order. Latimore then ran outside to look for the male. When he came back inside, he noticed that Carradine had left the store. Latimore then called the police. The dispatch recording was played for the jury.
{¶ 5} Mizell Mahoney testified that he lives diagonally across from the corner store. He told the jury that he was upstairs in his house when he heard the sound of a gunshot. When he looked out of the window, he saw two men running from the store. He called the police and described to the dispatcher that both of the men were black males, one wearing all black with a black hooded sweatshirt and the other wearing a green hooded sweatshirt. The jury listened to the recording of Mahoney's 911 call.
{¶ 6} Officer Daniel McCandless testified that he responded to the area for an initial call of two men shooting at each other. He received the descriptions of the males by dispatch. While in route, he saw a male, later identified as Carradine, fitting one of the descriptions he received, emerging from behind a closed daycare. Officer McCandless testified that when he approached Carradine, he observed a shiny object in Carradine's sweatshirt pocket. Believing that the object was a gun, he ordered Carradine to the ground. Officer McCandless recovered a silver handgun from Carradine's sweatshirt pocket and placed him under arrest.
{¶ 7} Officer McCandless took Carradine back to the corner store because he received a subsequent call about an attempted robbery and Carradine matched the description of one of the suspects. Officer McCandless conducted a cold stand identification with Latimore, Hunt, and the female patron. Each of them positively identified Carradine as the first male that came into the store before the gunman. Based on Carradine's clothing, Mahoney identified him as one of the males he saw running from the beverage center.
{¶ 8} Detective Jarod Schlacht testified that he was assigned to the case. As part of his investigation, he interviewed witnesses and toured the crime scene and surrounding areas for evidence and clues because the gunman had not been apprehended or identified.
{¶ 9} Additionally, he interviewed Carradine which was audio recorded. The recording was played for the jury who heard Carradine deny his involvement with the robbery. During the interview, Carradine maintained that he did not know the gunman but that he merely went into the store and walked back by the cooler. He stated that a black male who had the hood from his sweatshirt pulled tightly around his head was following him. It was this male that followed him into the store and pulled a gun on the cashier. However, the jury heard a subsequent recorded interview with Carradine who then admitted that he knew the gunman as “Little Bro,” but still maintained that he did not know that Little Bro was going to rob the store. Carradine supplied identifying information about Little Bro. However, Detective Schlacht testified that he was unable to locate or identify Little Bro based on the information received.
{¶ 10} Carradine testified in his defense. He admitted that he had a prior criminal record but that he wanted to testify because he was in the wrong place at the wrong time when Little Bro committed the robbery. He told the jury that he did not know that Little Bro was going to rob the corner store and denied participating in the robbery. Carradine testified that after playing basketball, he put his handgun in his waistband and was walking home when Little Bro came running up behind him and they walked up the hill together. While walking, Little Bro asked him if he had his gun on him. Carradine responded that he did. Carradine testified that he carried a gun on him at all times for protection even though he knew that it was illegal for him to carry a gun.
{¶ 11} After telling Little Bro that he had his gun on him, Carradine told him that he was going into the corner store. According to Carradine, Little Bro responded, “[o]h, yeah, you go in the store first.” Carradine testified that he responded, “[o]kay, I'll go.”
{¶ 12} Carradine initially testified that he walked into the store toward the back cooler and when he turned around, he saw Little Bro with a gun pointed at the cashier. Later he testified that he heard the gunshot first before turning around. Carradine testified that when he was on laying the floor, he told Latimore that he just got off of parole and put his identification on the floor. According to Carradine, he left the store because Hunt told him to get up off the floor and that he knew that he illegally had a gun on him.
{¶ 13} Carradine testified that after he left, he thought about abandoning the gun because he knew if he was stopped for questioning, he would be arrested. As he started to unload it, he realized he was close to home and thought he would be able to make it home undetected. However, Officer McCandless spotted him, searched him, discovered the gun, and he was arrested.
{¶ 14} The jury returned a verdict of guilty on all counts, including all the attendant specifications; the court found Carradine guilty of carrying a concealed weapon and having a weapon while under disability, including the attendant forfeiture specification. The court found that Counts 1 through 5 (aggravated robbery, robbery, aggravated burglary, burglary, and felonious assault) merged for sentencing purposes, with the state electing that Carradine be sentenced on the aggravated robbery count, Count 1. The court also found that all firearm specifications merged. Therefore, the court ordered Carradine to serve the three-year firearm specification in Count 1 prior and consecutive to the four year sentence on Count 1, for a total sentence of seven years. The court also ordered Carradine to serve 18 months on Count 6, carrying a concealed weapon; and 36 months for Count 7, having a weapon while under disability. Counts 6 and 7 were ordered to run concurrently to each other and to the seven-year sentence on Count 1.
{¶ 15} Carradine now appeals, raising four assignments of error, which will be addressed out of order.
{¶ 16} In his first assignment of error, Carradine contends that his convictions for Counts 1 though 5 were not supported by sufficient evidence and the trial court erred by denying his motions for acquittal.
{¶ 17} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 18} Carradine first challenges his convictions for aggravated robbery, robbery, aggravated burglary, burglary, and felonious assault by arguing that there was insufficient evidence to sustain his convictions under an aiding and abetting theory. He maintains that the evidence established that he was merely present which, under Ohio law, is insufficient.
{¶ 19} In this case, the state proceeded under a theory of aiding and abetting. Ohio's complicity statute, R.C. 2923.03(A), provides that “[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * aid...
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