State v. Evans, 108648

• Court: Ohio Court of Appeals
• Writing for the Court: EILEEN T. GALLAGHER, A.J.
• Citation: State v. Evans, 2020 Ohio 3968, No. 108648 (Ohio App. Aug 06, 2020)
• Decision Date: 06 August 2020
• Docket Number: No. 108648,108648
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. LESLIE EVANS, Defendant-Appellant.

2020 Ohio 3968

STATE OF OHIO, Plaintiff-Appellee, v. LESLIE EVANS, Defendant-Appellant.

No. 108648

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

August 6, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-19-636193-B

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton and Eben McNair, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

EILEEN T. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant, Leslie Evans ("Evans"), appeals from his convictions and sentence following a jury trial. He raises the following assignments of error for review:

1. The trial court erred by failing to grant defense counsel's motion to sever Counts 18, 19, and 20 from the unrelated charges for the three alleged robberies.

2. Evans's convictions were not supported by sufficient evidence and the trial court erred by denying his motions for acquittal.

3. The convictions were against the manifest weight of the evidence.

4. The trial court erred by admitting evidence in violation of Evid.R. 403 and 404(B).

5. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated Evans's state and federal rights to due process and protections against double jeopardy.

6. Evans's sentence is contrary to law because the record does not support the imposition of consecutive sentences.

{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for a limited resentencing hearing.

I. Procedural and Factual History

{¶ 3} In January 2019, Evans and his codefendants, David Stewart ("Stewart") and Tisean Young ("Young"), were named in a 21-count indictment. Evans was charged with five counts of aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications (Counts 1, 3, 5, 9, and 12); four counts of theft in violation of R.C. 2913.02(A)(1) (Counts 8, 11, 14, and 15); three counts of robbery in violation of R.C. 2911.02(A)(2), with one- and three-year firearm specifications (Counts 6, 10, and 13); two counts of petty theft in violation of R.C. 2913.02(A)(1) (Counts 2 and 4); two counts of tampering with evidence in violation of R.C. 2921.12(A)(1) (C0unts 16 and 20); and single counts of felonious assault in violation of R.C. 2903.11(A)(2), with one- and three-year firearm specifications (Count 7); having weapons while under disability in violation of R.C. 2923.13(A)(2), with a forfeiture specification (Count 18); carrying a concealed weapon in violation of R.C. 2923.12(A)(2), with a forfeiture specification (Count 19); and receiving stolen property in violation of R.C. 2913.51(A) (Count 21).

{¶ 4} The indictment stemmed from allegations that Evans participated in a series of aggravated robberies that occurred at a Dollar General store on September 3, 2018 (the "Dollar General robbery"), a Family Dollar store on September 30, 2018 (the "Family Dollar robbery"), and a CVS store on October 4, 2018 (the "CVS robbery"). The matter proceeded to a jury trial in April 2019, where the following relevant evidence was adduced.

{¶ 5} On October 4, 2018, two male suspects entered a CVS store located in Cleveland, Ohio. Theresa Daniels ("Daniels") testified that she and her daughter, D.B., were shopping in the CVS when one of the suspects, who was wearing a black-hooded sweatshirt, forced the store customers to the back of the store to keep them contained in one area. The suspect ordered D.B. to give him the two cell phones that were in her possession. The suspect also threatened to shoot Daniels and D.B. if they looked at him. D.B. testified that she "thought she was going to die, he was going to kill us or something." (Tr. 363.)

{¶ 6} As the suspect in the black-hooded sweatshirt contained the store customers, the second suspect, later identified as Evans, approached CVS store employees with a brandished firearm. CVS store pharmacist, Michael Daloisio ("Daloisio"), testified that the second suspect, who was wearing a green-hooded sweatshirt, ordered him at gunpoint to open the narcotics safe in the pharmacy area. Daloisio testified that he informed the suspect that he did not have the ability to open the safe because it was on a timed lock. Daloisio stated that the suspect began yelling at him and suddenly "smacked [him] with the gun." (Tr. 515.) Daloisio fell to the ground and was bleeding from his head. The suspect also took possession of Daloisio's wallet and cell phone. Daloisio testified that his wallet contained his driver's license, credit cards, gift cards, a key to his vehicle, and a key to his home. During the subsequent police investigation, it was later learned that the suspect in the green-hooded sweatshirt also took a cell phone from the store's security guard, Samuel Watkins ("Watkins").

{¶ 7} Detective Timothy Cramer ("Det. Cramer"), of the Cleveland Police Department, responded to the CVS store as the robbery was ongoing. By the time Det. Cramer and other responding officers entered the store, however, the two suspects had successfully fled the scene without apprehension. Det. Cramer testified that once the store was cleared, he spoke with the victims and recovered video footage from the store's surveillance camera system. The video footage was played for the jury throughout Det. Cramer's direct examination.

{¶ 8} On October 9, 2018, Detective Glenn Detrick ("Det. Detrick"), of the Cleveland Police Department, was patrolling a known crime area, when his partner "observed a male, showing characteristics of an armed male standing in [a] driveway." (Tr. 439.) Det. Detrick explained that he believed the male was armed because he was walking with "his hand down by his waist." (Tr. id.) When Det. Detrick "shined [a] light on the male," the male changed his course of direction and walked behind nearby bushes. When the male was eventually detained for further investigation, a loaded firearm was located in the bushes where the detectives had "lost sight of the male." (Tr. 440.) The male, later identified as Evans, was arrested, and his cell phone was confiscated. Evans's involvement in the CVS robbery was not known by the detectives at the time of his arrest.

{¶ 9} In the course of the investigation into the CVS robbery, Cleveland police detectives were able to track purchases made, or attempted to be made, with Daloisio's stolen credit cards. Detective Lisette Gonzalez ("Det. Gonzalez"), of the Cleveland Police Department, testified that a purchase in excess of $400 was attempted at a gun store by "an individual by the name of David Stewart." In addition, an attempted purchase was declined at an online clothing store. However, a stolen credit card was successfully used to purchase food at a fast-food restaurant.

{¶ 10} Det. Gonzales testified that investigators reviewed surveillance footage from the fast-food restaurant, and identified the vehicle that was used to purchase food with Daloisio's stolen credit card. The vehicle was registered to Evans's mother, Latisha Edwards. Det. Gonzalez testified that she entered Edwards's name into the Cuyahoga County juvenile database and learned that Evans was her son. Upon further investigation, Det. Gonzalez discovered that Evans had been arrested by the gang-impact unit on October 9, 2018, and was wearing a green-hooded sweatshirt at the time of his detention. Det. Gonzales explained that this was significant because the clothing worn by Evans at the time of his arrest "matched the same clothing that was worn during [other] aggravated robberies within the Fourth District." (Tr. 467.)

{¶ 11} On November 7, 2018, a search warrant was executed at Evans's home, where he lived with his mother and her boyfriend, codefendant Stewart. During the search, the detectives located ammunition, Daloisio's wallet, an ATM bank card belonging to Daloisio, credit cards belonging to Daloisio, an unidentified key, Watkins's social security card, Watkins's Medicare card, credit cards belonging to Watkins, a black-hooded sweatshirt that matched the clothing worn by the one of the suspects during the CVS robbery, and a green-hooded sweatshirt that matched the clothing worn by the second suspect during the CVS robbery. (Tr. 491-492.) In addition, certain items of clothing and a pair of shoes recovered from Evans's home were linked to the Family Dollar robbery. (Tr. 533.)

{¶ 12} Based on the evidence seized from his residence, Evans was interviewed by Det. Cramer about his involvement in the string of robberies. Relevant to this appeal, Det. Cramer testified that Evans admitted to participating in the CVS robbery. Evans confirmed that he was the suspect wearing a green-hooded sweatshirt by signing his name on a still image taken from the surveillance footage of the CVS robbery.

{¶ 13} Regarding his specific actions during the CVS robbery, Evans admitted that he took a cell phone from the CVS security guard and subsequently took the pharmacist's wallet and cell phone. Evans indicated that he and Young "dump[ed]" the stolen cell phones in a back yard as they fled the scene. (Tr. 533.) Based on this information, the cell phones were recovered by officers several days after Evans's interview. Det. Cramer testified that Evans further acknowledged that he used "a glock" during the CVS robbery, and that he subsequently sold the firearm to an unknown individual for $250. (Tr. 531.)

{¶ 14} Finally, Det. Cramer testified that he questioned Evans about the circumstances of his arrest on October 9, 2018. In relevant part, Evans admitted that he "ditched the firearm" that was recovered by detectives in the bushes. (Tr. 535.)

{¶ 15} Codefendant Young testified on behalf of the state pursuant to the terms of his plea agreement. He admitted to participating in the CVS robbery with Evans and codefendant...