State v. Green

• Decision Date: 31 December 1996
• Docket Number: C-960017,Nos. C-950956,s. C-950956
• Citation: 691 N.E.2d 316,117 Ohio App.3d 644
• Parties: The STATE of Ohio, Appellee, v. GREEN, Appellant. * First District, Hamilton County
• Court: Ohio Court of Appeals

Page 644

117 Ohio App.3d 644

691 N.E.2d 316

The STATE of Ohio, Appellee, v. GREEN, Appellant. ^*

Nos. C-950956, C-960017.

Court of Appeals of Ohio,

First District, Hamilton County.

Decided Dec. 31, 1996.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jennifer E. Day, Assistant Prosecuting Attorney, Cincinnati, for appellee.

Raul E. Tellez, Cincinnati, for appellant.

RAYMOND E. SHANNON, Judge.

Appellant Gregory R. Green, Sr., appeals his convictions for aggravated robbery, robbery, and receiving stolen property in contravention of R.C. 2911.01(A)(1), 2911.02(A), and 2913.51(A), respectively, following guilty verdicts on all three counts. In a separate hearing, the trial court found appellant guilty of a specification of a prior felony for aggravated robbery. The trial court sentenced appellant as appears in the record. In his appeal, appellant raises four assignments of error, asserting that the trial court erred to his prejudice by (1) engaging in an ex parte communication with the jury during its deliberations, (2) failing to grant his Crim.R. 29 motion for acquittal and entering judgment against him on the aggravated robbery count, and (3) overruling his motion to suppress identification testimony. Appellant's fourth assignment of error refers to the arguments in the pro se brief, attached to the brief filed by appellant's counsel on appellant's behalf, which assigns as error the trial court's allowance of testimony as to his other criminal acts and the insufficiency of the evidence as to all his convictions. Appellant's argument in support of his second pro se assignment of error raises issues of weight and credibility, not sufficiency, and will thus be addressed accordingly. ¹

On or about May 5, 1995, a man later identified as appellant entered the Franklin Savings and Loan Bank in Cincinnati, Ohio and approached teller Linda Fisher. He informed her that he wanted to cash an income tax check and requested large bills. Upon informing the teller he had an account at the bank and being told that his check could be cashed, appellant turned to the side, made fumbling motions, with his hands out of view, and then turned to the teller with a large envelope wrapped around his right hand. He motioned her forward and said, "[N]ow this is a stickup, and if you press any buttons I'll blow your brains out." He then reached across the counter, feeling for a drawer and poking the teller in the stomach with his fingers. She stepped back, reached over, and opened the cash drawer. Appellant pulled himself over the counter and grabbed the money. At that point, the teller did not see the envelope. Fisher testified that she did not see a gun and that appellant never said he actually had a gun. She testified, "He simply had his--an envelope wrapped around his hand in a way to make me, I suppose, suspect he might have one." She testified that she hoped that he did not.

Fisher alerted Dina Bradford, a nearby teller, who pressed the alarm button and ran to get the bank manager. Bradford testified that after appellant took the money, he looked at her and James Hood, the bank manager, and said, "Don't move or I'll blow your brains out." She testified that at the time appellant made the statement his hands were in his pockets. She also testified that she had not seen a gun in his hands while he was taking the money. Hood testified that after appellant had taken the money he said, "Nobody move, don't move or I'll blow your brains out."

Charlotte Jackson, a customer at the bank, testified that she first realized the bank was being robbed when appellant "jumped over and got the money" and stuffed it in his jacket pockets. She did not see an envelope. She did hear appellant say, "Nobody move or I'll blow your brains out." Linda Fatherree, another customer, testified that once she heard shouting, including the statement "if you follow me, I'll blow your brains out," she "hit the floor" and tried to hide. She subsequently glimpsed a person carrying money in both his hands rushing toward the door of the bank. Appellant left the bank with approximately $1,375 and a red dye pack. A witness walking down the street near the bank observed appellant running toward him with "red smoke coming out of his jacket."

Approximately forty-five minutes after the robbery, Nayka Lovett and her boyfriend, Johnny Ruffin, were driving on Reading Road when a grey Cavalier driven by appellant hit the side of Lovett's car. Because the automobile had no license plate displayed, Lovett and Ruffin decided to pursue it. After a short high-speed chase, they were able to stop appellant, and Ruffin jumped out of Lovett's car with the intention of punching appellant. When Ruffin approached the window of appellant's automobile, he saw what he thought was blood over the front of appellant. Ruffin returned to Lovett's automobile and appellant drove away. After running an errand at a nearby bank, Lovett and Ruffin decided to search for appellant. Approximately forty-five minutes later, they located his car in the Hillcrest Gardens area and asked security guards for assistance. Ruffin noticed a license plate in the front seat of the car. The security guards called the police. Meanwhile Ruffin noticed appellant peeking around a building and identified him to the security guards. Appellant was wearing different clothes from those he had been wearing when Ruffin had previously seen him. A foot chase ensued and resulted in appellant's apprehension. A Cincinnati police officer arrested appellant in connection with the automobile accident, issued two tickets, and later released him.

Subsequently, the Cincinnati police received an anonymous telephone tip that the person who had robbed Franklin Savings and Loan Bank was driving a grey Cavalier on Vine Street. Responding to the information, the Cincinnati police stopped appellant in a parking lot. A background check revealed that appellant had an outstanding warrant. A check on the license plate displayed in the rear window of the Cavalier revealed that it had been reported as lost. After speaking to the owner of the plate, Cincinnati Police Officer Sess issued a stolen-license-plate report, and appellant was charged with receiving stolen property.

While represented by counsel, appellant appeared in a lineup. He was identified by three of four witnesses to the robbery as the man who robbed the bank and was charged with aggravated robbery and robbery of the Franklin Savings and Loan Bank.

In appellant's first assignment of error, he challenges an alleged ex parte communication between the trial court and the jury during its deliberations. When reviewing the record, appellate counsel found a note, believed to contain the handwriting of the trial court and the jury foreperson, which reflected an inquiry as to whether the jury had to believe the defendant had a weapon, or whether they had to believe that the victims believed defendant had a weapon, and an answer referring the jury to the third line of a jury instruction it had been given. This error was not raised in the trial court, but was brought to this court's attention in appellant's brief and in a motion for remand to supplement the record. The motion for remand was denied, but this court, at oral argument, agreed to give appellant time to file a motion to supplement the record in the trial court. The motion was granted below, and appellant filed affidavits of the following people involved in his trial: a Hamilton County assistant prosecutor, the trial court's bailiff, ² the defense counsel, and appellant.

We have reviewed the affidavits. The assistant prosecutor and court bailiff unequivocally aver that both appellant and his attorney were present when the question at issue was raised by the jury and presented to the trial court, and that neither objected to the question or answer. Defense counsel describes the situation and states that appellant was present during the discussion. Appellant swears that he did not agree to the court addressing any issue without the jury being reconvened and the question being made part of the record, that his counsel never discussed the trial court addressing any issue "with the jury deliberation" not being put on the record, and that he was present when the jury made a request for a magnifying glass out of the presence of a court reporter, and he requested that the court reporter be called in and the matter be made part of the record. Upon our review of the affidavits, we hold that reasonable minds could only conclude that there was no ex parte communication between the trial court and the jury. Thus, appellant's first assignment of error is overruled.

In his second assignment of error, appellant argues that the trial court erred in denying his Crim.R. 29 motion as to the aggravated robbery count and that the conviction on that count was both against the manifest weight of the evidence and unsupported by sufficient evidence.

An entry of judgment of acquittal pursuant to Crim.R. 29 is improper "if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. In ruling on such a motion, the trial court must view the evidence in a light most favorable to the state. State v. Evans (1992), 63 Ohio St.3d 231, 248, 586 N.E.2d 1042, 1056. In determining a sufficiency-of-the-evidence claim, an appellate court must determine "whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt." State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 218-219, 485 N.E.2d 717, 720. Further, "[a] reviewing court will not reverse a jury verdict where there...