State v. Miller

• Decision Date: 10 November 2014
• Docket Number: No. 9–13–27.,9–13–27.
• Citation: 23 N.E.3d 278
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Stacey L. MILLER, Defendant–Appellant.
• Court: Ohio Court of Appeals

23 N.E.3d 278

STATE of Ohio, Plaintiff–Appellee

v.Stacey L. MILLER, Defendant–Appellant.

No. 9–13–27.

Court of Appeals of Ohio, Third District, Marion County.

Nov. 10, 2014.

Valerie Kunze, for Appellant.

Brent W. Yager, for Appellee.

OPINION

ROGERS, J.

{¶ 1} Defendant–Appellant, Stacey L. Miller, appeals the judgment of the Court of Common Pleas of Marion County convicting him of one count of robbery, six counts of theft, one count of possession of heroin, three counts of receiving stolen property, one count of aggravated robbery, two counts of tampering with evidence, and one count of possession of criminal tools, and sentencing him to an aggregate prison term of 28 years. On appeal, Miller argues that the trial court erred by: (1) denying him his right to self-representation; (2) failing to dismiss nine counts in his indictment that took place in other counties besides Marion County; (3) abusing its discretion by allowing evidence of an unrelated and uncharged robbery; (4) entering a guilty verdict that was based on insufficient evidence; (5) convicting him of a felony of the fifth degree for his charge of possession of criminal tools when the verdict form failed to comply with R.C. 2945.75(A)(2) ; and (6) imposing consecutive sentences. For the reasons that follow, we reverse the trial court's judgment.

{¶ 2} On October 13, 2011, the Marion County Grand Jury indicted Miller on one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree¹ ; two counts of theft in violation of R.C. 2913.02(A)(1), felonies of the fourth degree; one count of possession of heroin in violation of R.C. 2925.11(A) /(C)(6), a felony of the fifth degree; and two counts of receiving stolen property in violation of R.C. 2913.51(A), felonies of the fifth degree. All six counts stated that the offenses occurred in Marion County. However, on January 30, 2012, the State filed a motion to amend indictment as to Counts 5 and 6 in order to change the location from Marion County to Wyandot County. (Docket No. 76, p. 1). Then, on February 3, 2012, the State filed a revised motion to amend indictment stating that Counts 5 and 6 actually occurred in Crawford County. (Docket No. 109, p. 1). No judgment entry was filed that either granted or denied the State's motions to amend. On March 22, 2012, Miller filed a pro se motion to dismiss Counts 5 and 6. In his motion, Miller argued that he was not charged in either of the jurisdictions where the license plates were stolen or received, and that the State failed to explain what element of Counts 5 and 6 occurred in Marion County. Accordingly, Miller asked the court to dismiss these counts.

{¶ 3} On April 24, 2012, the Marion County Grand Jury, in a second supplemental indictment, indicted Miller on another count of receiving stolen property in violation of R.C. 2913.51(A), a felony of the fifth degree. A third supplemental indictment was filed on May 10, 2012. The Marion County Grand Jury indicted Miller on eight additional counts: one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree; four counts of theft in violation of R.C. 2913.02(A)(1), felonies of the fifth degree; two counts of tampering with evidence in violation of R.C. 2921.12(A)(1), felonies of the third degree; and one count of possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. Notably, the third supplemental indictment contained six counts that occurred in counties other than Marion County.² For example, Count 8 stated:

COUNT 8—Aggravated Robbery [R.C. 2911.01(A)(1) ], F1

STACEY L. MILLER, as part of a course of criminal conduct, in Crawford County, did on or about September 30, 2011, did, in attempting or committing a theft offense, as defined in R.C. 2913.01, or in fleeing immediately after the attempt or offense, have a deadly weapon on or about his person or under his control and either display the weapon, brandish it, indicate the Defendant possessed it, or use it.

(Boldface sic.) (Emphasis added.) (Docket No. 256, p. 1).

{¶ 4} On May 16, 2012, Miller filed a pro se motion to dismiss Counts 8, 9, 10, 11, 12, and 13. (Docket No. 286). In his motion, Miller alleged that the trial court did not have jurisdiction over these counts since they occurred in different counties.

{¶ 5} On January 4, 2013, the trial court filed an entry finding that Miller's motion to dismiss was not ripe for review. Specifically, the trial court stated that these issues “cannot be determined until the actual trial of the case. Whether or not the addition of the out of county Indictment counts are proper or not depends on whether said actions were part of the course of a continuing conduct, showing a similar modus operandi or common plan or scheme.” (Docket No. 355, p. 2). The trial court stated that if there was such a relation, Counts 8–13 were appropriate; however, if no such relation was established at trial, it would dismiss Counts 8–13. (Id. ).

{¶ 6} On March 13, 2013, the State filed a motion to amend Count 15 of the supplemental indictment.³ The State filed the motion to correct a “typographical error⁴ by changing the location from Marion County to ‘as part of a criminal course of conduct in Crawford County, Ohio.’ ” (Docket No. 436, p. 1). No entry was filed that either granted or denied the State's third motion to amend indictment.⁵

{¶ 7} On May 2, 2012, the State filed a motion asking the court to rule on the admissibility of other acts evidence that the State intended to introduce at trial, which would implicate Miller in two additional robberies and the theft of several license plates and a cell phone, pursuant to Evid.R. 404(B) and R.C. 2945.59. (Docket No. 235, p. 1). Specifically, the State alleged that identity would be an issue at trial as Miller had denied being the perpetrator of any of the robberies. Further, the State sought to use the other acts evidence to establish Miller's “motive, knowledge, scheme, plan and preparation for the Marion General robbery.” (Id. at p. 6). On January 4, 2013, the trial court ruled on the State's motion stating that unindicted conduct will only be admissible if the “proffered evidence is closely related in nature, time and place to the indicted offenses against the Defendant.” (Docket No. 355, p. 2).

{¶ 8} On the second day of trial, outside the purview of the jury, the State and the trial court had the following relevant exchange regarding the State's other acts evidence:

Trial Court: I guess that the problem that I am having here, you are showing there is [sic] some bad acts, but not showing that it's him doing the acts. You are building an inference on inferences. You have the inference, similar guy, there is an inference which is okay, but building the inference on inference that this particular guy is doing it, I think that is problematic.

State: The way the robbery is committed, you don't have to refer the manner in which the robbery is committed and the facts and circumstances that the robbery is committed and allows the inference it's him that did it.

Trial Court: The vast majority of the cases that the Defendant is doing, the bad acts, the whole issue is if he's doing the acts that he's charged, bad acts brought in exception when it's clear that the Defendant is doing the bad acts, we don't know that, is what you are telling me? That is the problem that the Court has with this from what you are saying the vast number of cases.

Matter of fact, what I've seen dealing with bad acts, the Defendant doing the bad acts, you know, you don't have that from what you are proffering to me.

* * *

Trial Court: I will tell you not to allow it in, but if you have the case authority or whatever on it, I will do further research on it myself. I don't see myself ruling on it today, I will take a look at it this evening and figure out where we go from there. Anything else to cover?

Trial Tr., Volume II, p. 165–167.

{¶ 9} On the third day of trial, an off the record discussion was had regarding the other acts evidence. Trial Tr., Volume III, p. 4. The trial court then stated, on the record, that “[w]e need the evidence brought in.” Id. at p. 5. The trial court gave no further explanation.

{¶ 10} The trial of this matter commenced on March 19, 2013, and ended on March 26, 2013. At trial, evidence was presented that a Rich Oil gas station, in Galion, Ohio, was robbed on September 30, 2011. Stephanie Stratton, a gas station attendant, was working that day. She testified that the assailant put a gun to her head and demanded money. Stratton was able to identify the assailant as a white male. She also stated that he was also wearing a blond wig and drove a silver Hyundai Santa Fe. Stratton was also able to remember the suspect's license plates, which matched a set of license plates that were reported stolen. The blond wig and gun were never recovered. At trial, Stratton identified Miller as the man who robbed the gas station.

{¶ 11} On October 1, 2011, a woman was robbed in a Kroger parking lot in Marion, Ohio. The assailant jumped out of a white colored SUV and demanded the woman's purse. The woman was unable to get a good look at her assailant as he was wearing a bandana around his face. The woman was able to recall a partial license plate number for the assailant. The number matched the license plates of Sarah Shonk, who eventually discovered that her license plates had been stolen.

{¶ 12} Evidence was also presented that on October 7, 2011, a robbery occurred at the Marion General Hospital parking lot. Maxine Reed, a 77–year–old volunteer for the hospital, was walking from her car when a man in a silver Hyundai Santa Fe exited his car and demanded her purse. The assailant was again wearing a blond wig. The volunteer was able to memorize the attacker's license plates, which were reported stolen from another vehicle. Reed's stolen purse was never recovered.

{¶ 13} On the evening of October 8, 2011, Trooper Jones of the Ohio Highway...