State v. Moore

• Decision Date: 27 March 2013
• Docket Number: No. 12 MA 8.,12 MA 8.
• Citation: 990 N.E.2d 625
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Darrin MOORE, Defendant–Appellant.
• Court: Ohio Court of Appeals

990 N.E.2d 625

STATE of Ohio, Plaintiff–Appellee,

v.Darrin MOORE, Defendant–Appellant.

No. 12 MA 8.

Court of Appeals of Ohio, Seventh District, Mahoning County.

March 27, 2013.

Attorney Paul Gains, Prosecuting Attorney, Attorney Ralph Rivera, Assistant Prosecuting Attorney, Youngstown, OH, for Plaintiff–Appellee.

Attorney Lynn Maro, Youngstown, OH, for Defendant–Appellant.

JOSEPH J. VUKOVICH, GENE DONOFRIO, CHERYL L. WAITE, JJ.

VUKOVICH, J.

{¶ 1} Defendant-appellant Darrin Moore appeals after being sentenced on multiple offenses resulting partially from a plea and partially from a jury verdict entered in the Mahoning County Common Pleas Court. Appellant sets forth nine assignments of error, raising issues with joinder, the omission of a name from the state's witness list, complicity on a firearm specification, the refusal to permit plea withdrawal, the admission of testimony from the first trial, sufficiency of the evidence, flight instructions, prosecutorial misconduct, and weight of the evidence. For the following reasons, appellant's convictions are affirmed.

STATEMENT OF THE CASE

{¶ 2} On September 9, 2003, a woman in a Boardman parking lot was restrained by two teens armed with a gun. Before the woman escaped, she was hit with the gun, her purse was stolen, her bra was removed, and her breasts and buttocks were fondled. The teens then fled in her vehicle. The car was spotted later that day, and a police car chase ensued. Appellant was eventually apprehended after fleeing from the vehicle. Weeks later, he escaped from custody after claiming to need medical treatment.

{¶ 3} On December 10, 2003, an off-duty security guard reported that his 1993 blue Buick LeSabre was stolen from the parking lot of 541 Club, a private club on the east side of Youngstown. (Tr. 335–336). The trunk of his car contained his gun belt with a holster, a silver and black .357 magnum, speed loaders, and .38 caliber bullets. (Tr. 334–336).

{¶ 4} On December 11, 2003 at 10:20 p.m., Mr. Robert Smith was shot four times in the parking lot at 541 Club and his 1997 burgundy Cadillac Catera was stolen from the lot. He died from his wounds. The bullets recovered from the body and scene were of the type fired by a .357 magnum. (Tr. 381).

{¶ 5} That night around midnight, appellant and Damon Clark stopped at a friend's house. This friend described Clark as acting nervous and appellant as acting normal. When she asked appellant if he was “up to no good,” he responded, “pow, pow, pow.” (Tr. 296, 308, 317). She noticed that appellant had a chrome revolver and a police-like holster on a belt. She then witnessed appellant empty shell casings from the gun into an ashtray, empty the ashtray into the trash, and take the trash to the curb. (Tr. 297–298).

{¶ 6} At this time, she saw a blue Buick LeSabre on the street in front of her four-plex. (Tr. 299). She also saw a white van parked across the street. (Tr. 299). In the back driveway, she noticed a burgundy Cadillac Catera. (Tr. 300). When appellant left after half an hour, the Cadillac remained. After this witness learned about what happened to Mr. Smith, she told appellant and Clark to get the Cadillac out of her driveway. (Tr. 301–302). During this conversation, appellant told her that “they shot some guy on the south side.” (Tr. 302). Appellant then asked her for a milk carton so they could burn the car. (Tr. 302–303).

{¶ 7} A few days after Mr. Smith was killed, the police received a call that a car was burning on an abandoned road. (Tr. 270–272, 481). The car turned out to be the one stolen from the murder victim. A witness saw a white van leaving the scene of the fire. (Tr. 477, 479). This van was also seen at a nearby gas station. A video surveillance tape showed Damon Clark exitingthe stolen white van and buying gas. (Tr. 480–481).

{¶ 8} Damon Clark was then arrested, leading police to speak with the friend who saw appellant empty the shells out of the gun. The police also spoke to Clark's cousin, who had been dating appellant for a month. (Tr. 425–426). This witness stated that appellant and Clark came to her house in the early morning hours of December 11, 2003 and spent the night. In the morning, they asked her if she saw the news. (Tr. 428). She also testified that appellant told her he shot a man and he was worried Clark was going to tell on him. (Tr. 430–431, 435).

{¶ 9} On January 8, 2004, the police learned appellant's location and began surveillance. When appellant drove away in a stolen vehicle, the police activated their lights. (Tr. 384–385, 387–389). Appellant refused to stop and eventually crashed into a fence. (Tr. 385). Appellant then fled on foot, and the police found him hiding behind wooden crates in an industrial park. (Tr. 385–386).

{¶ 10} Appellant was charged with multiple offenses, which as will be seen, result in a convoluted procedural history. Some of appellant's offenses were tried to a jury in 2006. On appeal of those convictions, this court found issues with joinder and a violation of a pre-indictment non-prosecution agreement entered in the juvenile court with regards to certain offenses. State v. Moore, 7th Dist. No. 06MA15, 2008-Ohio-1190, 2008 WL 697649. On the joinder issue, we held that appellant's escape charge from October of 2003 and his receiving stolen property charge resulting from driving a stolen car during his January of 2004 arrest should not have been tried with his December of 2003 aggravated murder and aggravated robbery charges. Id. at ¶ 80–81 (and a failure to comply charge that no longer exists). We thus remanded for three separate trials: one for the December of 2003 aggravated murder and aggravated robbery; one for the October of 2003 escape; and one for the January of 2004 receiving stolen property count. Id. at ¶ 83, 169. (The trial court had already severed the charges from the September of 2003 carjacking of the woman, and these had not yet been tried.)

{¶ 11} After remand, a superseding indictment was filed containing the following counts: (1) Aggravated Murder; (2) Aggravated Robbery (of the murder victim on December 11, 2003); (3) Receiving Stolen Property (possessing the stolen gun on December 11, 2003); (4) Aggravated Robbery (from the September 9, 2003 incident); (5) Gross Sexual Imposition; (6) Kidnapping; (7) Escape (on October 22, 2003); (8) Receiving Stolen Property (the security guard's car); and (9) Receiving Stolen Property (the car driven during the January 8, 2004 arrest).

{¶ 12} On June 22, 2010, appellant entered guilty pleas to counts four, five, and six, the counts relating to the September 9, 2003 carjacking of the woman in Boardman. As part of the plea, the gross sexual imposition charge was changed to complicity at appellant's request (where he expressly recognized that this did not change the offense or the sentence). Sentencing on these charges was postponed until the final sentencing on all charges, and bond was reduced.

{¶ 13} The court had set all of the December 11, 2003 charges for one jury trial. On February 14, 2011, the first morning of trial, the defense objected to the receiving stolen property count (representing the stolen murder weapon) being tried with the aggravated murder and aggravated robbery counts. (Tr. 2). Nevertheless, the trial proceeded on all three counts. On February 22, 2011, the jury found appellantguilty of these three counts and two firearm specifications.

{¶ 14} On February 24, 2011, appellant filed a motion to withdraw the plea to the offenses involved in the September 9, 2003 carjacking: aggravated robbery, complicity to gross sexual imposition, and kidnapping.

{¶ 15} The next day, he pled guilty to the escape charge, and the state dismissed the two receiving stolen property counts and recommended a five-year concurrent sentence for the escape.

{¶ 16} After entering this plea, the defense presented arguments in support of the motion for plea withdrawal on the September carjacking counts. The court denied this plea withdrawal motion.

{¶ 17} The court then sentenced appellant on these and the other remaining counts as follows: (1) twenty years to life for aggravated murder; (2) ten years, consecutive, for aggravated robbery; (3) eighteen months, consecutive, for receiving stolen property (gun); (4) ten years, consecutive, for aggravated robbery; (5) eighteen months, consecutive, for complicity to gross sexual imposition; (6) ten years, consecutive, for kidnapping; (7) five years, concurrent, for escape.

{¶ 18} The three-year firearm specifications from the same incidents merged, leaving one specification for the September carjacking and one specification for the December murder/robbery. Appellant's aggregate sentence totaled fifty-nine years to life, and he was labeled a Tier I sex offender.

{¶ 19} Trial counsel failed to file a notice of appeal as instructed by the trial court in its sentencing entry on the belief that the simultaneously appointed appellate counsel would file the appeal; however, appellate counsel was never informed of her appointment. This court granted leave to file a delayed appeal in January of 2012, and the briefs were filed in July and November of 2012.

ASSIGNMENT OF ERROR NUMBER ONE

{¶ 20} Appellant sets forth nine assignments of error, the first of which alleges:

{¶ 21} “THE TRIAL COURT ERRED BY GRANTING IMPROPER JOINDER OF COUNT 3 OF THE INDICTMENT ON THE MORNING OF TRIAL THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL IN VIOLATION [OF] THE LAW OF THE CASE AND THE [CONSTITUTION].”

{¶ 22} An indictment can contain multiple offenses if the offenses charged “are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.” Crim.R. 8(A) (joinder of offenses). “Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in...