State v. Lanier, C-080162.
| Citation | 2008 Ohio 6906,180 Ohio App.3d 376,905 N.E.2d 687 |
| Decision Date | 31 December 2008 |
| Docket Number | No. C-080162.,C-080162. |
| Parties | The STATE of Ohio, Appellee, v. LANIER, Appellant. |
| Court | Ohio Court of Appeals |
{¶ 1} Defendant-appellant, Daniel Lanier, appeals his convictions for one count of attempted murder1 and two counts of felonious assault,2 all with accompanying firearm specifications. We affirm the trial court's findings of guilt, but because two of the convictions should have been merged for sentencing, we vacate the sentences imposed and remand the case for resentencing.
{¶ 2} Evidence presented at a jury trial showed that Biondi Stevenson and his cousin, Ronald Dickerson, learned that Josh and Jeremy Griffin wanted to fight them. Stevenson had been Jeremy's friend and had dated Josh and Jeremy's sister, Cecily. Lanier was dating Cecily at that time.
{¶ 3} At approximately noon, Stevenson and Dickerson went to the Griffin home to try to find out the reason for the dispute. When they went up to the house, Lanier confronted them. He told them that he would "body" them and put them "in a box," slang terms for killing them. Stevenson and Dickerson left the house and went to their home. During that day, they kept receiving text messages saying that Jeremy and Josh still wanted to fight.
{¶ 4} That night, Stevenson and Dickerson drove past the Griffin home. Because traffic had backed up on the street, they were stopped in front of the house. Lanier and several others saw them and tried to pull them out of their cars, but they were able to drive away.
{¶ 5} They drove a short distance, to Stevenson's home. Before long, Lanier and three other men jumped out of a car. Dickerson tried to run, but the three other men caught him and began beating him. Lanier approached Stevenson, pulled out a gun, and started shooting at him. One of the shots hit Stevenson, and he yelled that he had been shot. Lanier continued to shoot and fired at least four more shots until the gun jammed.
{¶ 6} Stevenson ran to the side of the house and his mother called for help. Lanier and the men with him left the scene. Stevenson did not know Lanier's name, but was able to identify him from a photographic lineup.
{¶ 7} In his first assignment of error, Lanier contends that he was denied due process when the state failed to disclose, until the day of trial, voluminous tape-recorded statements of Lanier's conversations with his girlfriend while he was in jail. In his second assignment of error, he contends that the trial court erred by not excluding the recorded statements from evidence, since the state had failed to provide them in discovery. These assignments of error are not well taken.
{¶ 8} Crim.R. 16(B)(1)(i) requires the state to disclose relevant recorded statements made by the defendant. In State v. Lewis,3 this court held that recorded telephone calls between the defendant and his mother and girlfriend were not "statements" that needed to be disclosed under Crim.R. 16(B). We stated, "The rule does not specifically define the word `statement' but we believe that the recorded phone conversation to defendant's mother and girl friend does not fall within the concept of a formal, detailed presentation of facts to law enforcement personnel that the plain meaning of `statement' connotes."
{¶ 9} We repeated that holding several years later in State v. Dorn.4 We stated that "no provision of Crim.R. 16(B) mandates the disclosure of inculpatory statements made by a defendant to others except those made to the prosecution or to law enforcement." Consequently, the tape-recorded statements of conversations between Lanier and his girlfriend in this case were not statements within the meaning of Crim.R. 16(B) that the state was required to disclose.
{¶ 10} Further, even if the state were required to disclose the tape-recorded statements, we could not hold that the trial court abused its discretion by admitting the statements into evidence.5 The state's failure to provide discovery does not amount to reversible error unless the defendant shows (1) that the prosecution's failure to disclose was willful and (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or that the accused was prejudiced by the admission of the statement into evidence.6
{¶ 11} Nothing in the record shows that the state willfully hid the recordings. While the state did not provide the recordings until the day that the trial was originally scheduled, the trial court continued the case. Due to the large number of recordings, the court also ordered the prosecutor to provide the relevant conversations to Lanier in a form that he could more easily use. The trial did not actually occur until several weeks later, and Lanier had ample time to review the recordings. Under the circumstances, he did not show that he suffered any prejudice due to the state's late disclosure of the recordings.7
{¶ 12} Lanier also argues under these assignments of error that the state's closing argument about the conversations on the tape and other issues was improper. The test for prosecutorial misconduct is (1) whether the remarks were improper and (2) if so, whether the remarks prejudicially affected the accused's substantial rights.8 The conduct of the prosecuting attorney during trial cannot be grounds for error unless it deprives the defendant of a fair trial.9
{¶ 13} Lanier failed to object to the comments that he now complains were improper. Thus, he is precluded from raising the issue on appeal unless the error rises to the level of plain error.10 Our review of the prosecutor's entire argument shows that even if the comments were improper, none of the instances of which Lanier complains was so egregious as to affect his substantial rights or to deny him a fair trial. They certainly did not rise to the level of plain error.11 Consequently we overrule Lanier's first and second assignments of error.
{¶ 14} In his fourth assignment of error, Lanier contends that the evidence was insufficient to support his convictions. Our review of the record shows that a rational trier of fact, after viewing the evidence in a light most favorable to the prosecution, could have found that the state had proved beyond a reasonable doubt all the elements of felonious assault under R.C. 2903.11(A)(1) and (A)(2) and attempted murder under R.C. 2903.02(A) and 2923.02(A), along with the accompanying firearm specifications. Therefore, the evidence was sufficient to support the convictions.12
{¶ 15} Lanier argues that no forensic evidence connected him to the shooting. But no rule of law exists that a witness's testimony must be corroborated by physical evidence.13 Lanier also argues that the state's witnesses were not credible. Matters as to the credibility of evidence are for the trier of fact to decide.14
{¶ 16} Lanier further argues that his convictions were against the manifest weight of the evidence. After reviewing the record, we cannot say that the trial court lost its way and created such a manifest miscarriage of justice that we must reverse Lanier's convictions and order a new trial. Therefore, his convictions were not against the manifest weight of the evidence, and we overrule his fourth assignment of error.15
{¶ 17} In his third assignment of error, Lanier argues that the trial court erred when it sentenced him on all three counts of the indictment. He argues that the two counts of felonious assault and the one count of attempted murder all involved allied offenses of similar import. This assignment of error has some merit, although we do not agree entirely with Lanier's argument.
{¶ 18} In State v. Cabrales,16 the Ohio Supreme Court clarified the law of allied offenses. It began by stating that "[t]his court has recognized that R.C. 2941.25 requires a two-step analysis."17 The first step requires a comparison of the elements of the offenses. If the elements of the offenses correspond to such a degree that commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import.18
{¶ 19} If the court finds that the offenses are allied offenses, it must proceed to the second step, which involves a review of the defendant's conduct to determine whether the offenses were committed separately or with a separate animus as to each. If the court determines that the offenses were committed separately, the defendant may be convicted of both offenses.19
{¶ 20} In discussing the first step, the Supreme Court noted that its previous decision in State v. Rance,20 which required an abstract comparison of the elements of the offenses, had caused much confusion and that courts had misinterpreted that decision.21 The court held, 22 Thus, if the elements of the offenses are so similar that commission of one will result in commission of the other, then the offenses are allied offenses of similar import.23
{¶ 21} The court in Cabrales employed a more pragmatic approach to allied-offense issues.24 But it did not abandon the two-part test that courts have traditionally...
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State v. Wilson
... ... See State v. Lanier, 180 Ohio App.3d 376, 2008-Ohio-6906, 905 N.E.2d 687 ... 912 N.E.2d 142 ... {¶ 53} Therefore, the sixth assignment of error is ... ...
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State v. Shelby
... ... 16(B) and therefore need not be disclosed as part of discovery." Payton at 11; citing State v ... Lanier , 180 Ohio App.3d 376, 2008-Ohio-6906, 905 N.E.2d 687, 8-9 (vacated in part on other grounds); citing State v ... Lewis , supra , at *2.] { 35} ... ...
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State v. Payton
... ... 16(B)2 and therefore need not be disclosed as part of discovery. State v. Lanier, 180 Ohio App.3dPage 9376, 2008-Ohio-6906, 905 N.E.2d 687, 8-9 (vacated in part on other grounds); citing State v. Lewis, supra, at *2.{12} Thus, ... ...