State v. Moore
| Decision Date | 24 June 2005 |
| Docket Number | No. 02 CA 216.,02 CA 216. |
| Citation | 161 Ohio App.3d 778,832 N.E.2d 85,2005 Ohio 3311 |
| Parties | The STATE of Ohio, Appellee, v. MOORE, Appellant. |
| Court | Ohio Supreme Court |
Paul J. Gains, Mahoning County Prosecuting Attorney, for appellee.
Gary L. Van Brocklin, Youngstown, for appellant.
{¶ 1} Appellant, Brandon Moore, challenges a number of aspects of his 141-year prison sentence for 12 counts of aggravated robbery, rape, complicity to rape, kidnapping, conspiracy to commit aggravated robbery, and aggravated menacing, along with 11 firearm specifications. Appellant contends that some of the firearm specifications should have been merged, that consecutive sentences were improperly imposed, that his substitute counsel at sentencing was ineffective, and that three counts of complicity to rape should have been merged. As will be more fully explored below, we find merit in two of appellant's assignments of error on appeal. The record reflects that some of the firearm specifications covered the same acts and transactions and therefore should have been merged. Appellant is also correct that there were errors in the manner in which consecutive sentences were imposed. Finally, there is plain error in the wording of the conspiracy charge in the indictment. None of appellant's other arguments are persuasive. The judgment of the Mahoning County Court of Common Pleas is affirmed in part, reversed in part, and vacated in part, and the cause is remanded for resentencing.
{¶ 2} On August 21, 2001, Jason Cosa pulled into his driveway and was confronted by appellant, who pushed a gun into Jason's face and demanded money. Appellant was 15 years old at the time. The other two passengers in Jason's car were Christine Hammond and Jason's grandfather. After the victims handed over their possessions, appellant fled down the driveway and entered a dark, noisy, older-model automobile that was waiting for him.
{¶ 3} That same evening, appellant approached M.K., a 21-year-old student at Youngstown State University. As she was opening the trunk of her car, appellant put a gun into her stomach and demanded money. Appellant was wearing a mask, but removed the mask during the robbery. He began telling M.K. how beautiful she was and forced her to the passenger side of her car. Appellant entered the driver's seat and began following a dark, older-model vehicle. M.K. had noticed this vehicle stopping nearby prior to the attack.
{¶ 4} As they drove, appellant continued commenting on M.K.'s beauty. He demanded that she turn over any jewelry, and she complied. M.K. asked to be released, but appellant refused. Soon afterward, appellant stopped the car and codefendant Chaz Bunch entered M.K.'s car through the back door. Bunch put a gun to M.K.'s head and demanded money. Throughout the ordeal M.K. pleaded with them not to kill her.
{¶ 5} As they continued to follow the other vehicle, appellant inserted his fingers into M.K.'s vagina several times. At this point, M.K. tried to memorize the license plate of the dark vehicle they were following, which she remembered as CTJ 6423.
{¶ 6} The cars turned down a dead-end street and stopped on a gravel lot. Bunch and appellant ordered M.K. to get out of the car and pointed their guns at her. They grabbed her by the hair and forced their penises into her mouth, taking turns holding her head and orally raping her. This was repeated two or three times. Again M.K. pleaded that they not kill her, and they then took M.K. to the trunk of her car.
{¶ 7} Once at the trunk, codefendant Jamar Callier began going through M.K.'s possessions in the car. Some items taken were a green Nike bag, tennis shoes, clothes, a bag from Old Navy, jewelry, and a purse. As M.K. faced the trunk of her car, appellant and Bunch told her to pull her pants down and turn around. M.K. resisted, and told her attackers she was pregnant, in an attempt to avoid being raped again. Appellant and Bunch pushed her, face forward, against the car and one of them anally raped her. Bunch then put his gun into her back and forced her to the front of the car.
{¶ 8} Bunch threw M.K. to the ground. While she was on the ground, appellant and Bunch took turns vaginally and orally raping her. While one was vaginally raping her, the other would perform an oral rape, and vice versa.
{¶ 9} At some point, codefendant Callier came over and forced them to stop. Bunch stated that he wanted to kill her, but Callier would not let him. Appellant put his gun in M.K.'s mouth and told her, "Since you were so good, I won't kill you." Callier helped M.K. back into her car. They threatened to kill her and her family if she told anyone what had happened.
{¶ 10} M.K. drove to the home of her boyfriend's uncle and began screaming out the license plate number of the car she had seen. It later was discovered that she had inverted two numbers; the license plate was actually CTJ6243. M.K. was immediately taken to the hospital, and the Youngstown Police Department was contacted. Officer Colleen Lynch was at the hospital on an unrelated call and followed M.K. into the emergency room. She observed bruises, scrapes, and swelling. A sexual-assault nurse completed a rape examination of M.K.'s mouth, vagina and rectum, and recorded several injuries including bruises, bite marks, scratches, and abrasions and injuries to her vagina and anus.
{¶ 11} After leaving the scene of the crime, the assailants went to a Dairy Mart on Mahoning Avenue. Officer Anthony Vitullo had heard a broadcast of the license plate of the suspects' vehicle (with two numbers transposed) and noticed a similar vehicle in the Dairy Mart parking lot. Officer Vitullo observed and followed the vehicle, which soon ran a stop sign and pulled into a driveway on Edwards Street in Youngstown. Codefendant Bunch, who was driving, stopped the car and ran. Officer Vitullo radioed for backup assistance and arrested the other occupants of the car. Items found in the car included M.K.'s bag from Old Navy, a stuffed animal, a leather purse, tennis shoes, female clothing, a vehicle-registration card, and a credit-union card belonging to victim Jason Cosa, a .38-caliber handgun, a black face mask, blue and black caps, bullets, and shotgun shells. Police also found a piece of paper in the pocket of appellant's pants that stated "Property of [M.K.]."
{¶ 12} After the police took appellant into custody, juvenile proceedings were initiated against him in the Mahoning County Court of Common Pleas, Juvenile Division. The case was transferred to the general division, and a 12-count complaint, with 11 firearm specifications, was filed against appellant on May 16, 2002. The counts included three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), three counts of rape in violation of R.C. 2907.02(A)(2), three counts of complicity to rape in violation of R.C. 2923.03(A)(2) and 2907.02(A)(2), one count of kidnapping in violation of R.C. 2905.01(A)(4), one count of conspiracy to commit aggravated robbery in violation of R.C. 2923.01(A)(1) and 2911.01(A)(1), and one count of aggravated menacing in violation of R.C. 2903.21(A). Counts one through 11 were first-degree felonies, count 12 was a first-degree misdemeanor.
{¶ 13} On September 11, 2002, the trial court joined appellant's case with that of the other three codefendants. Trial began on September 23, 2002. The jury found appellant guilty on all 12 counts on October 2, 2002. Sentencing was scheduled for October 23, 2002.
{¶ 14} On October 17, 2002, appellant's counsel filed a motion to continue the sentencing hearing due to personal matters. The court overruled the motion on October 21, 2002. Appellant was represented at the sentencing hearing by another attorney.
{¶ 15} On October 29, 2002, the trial court filed its judgment. The court sentenced appellant to the maximum prison term for each count, to be served consecutively (except for the misdemeanor menacing charge, which was to be served concurrently with the other sentences). The court also sentenced appellant to 11 firearm-specification penalties, also to be served consecutively. The aggregate sentence amounted to 141 years in prison.
{¶ 16} Appellant filed this timely appeal on November 20, 2002.
{¶ 17} Appellant presents four assignments of error and one supplemental assignment of error in this appeal. They will be presented slightly out of order to aid our analysis. There is also a preliminary matter concerning the conspiracy-to-commit-aggravated-robbery charge that we must address prior to reviewing appellant's assignments of error.
{¶ 18} On review of appellant's assignments of error, along with our review of the appeals submitted by appellant's codefendants, it was brought to our attention that the portion of the indictment dealing with the appellant's conspiracy charge appeared to be defective in light of the holding in State v. Childs (2000), 88 Ohio St.3d 194, 724 N.E.2d 781. In Childs, the Ohio Supreme Court was asked to determine "whether an indictment for conspiracy pursuant to R.C. 2923.01, which fails to allege at least one specific, substantial, overt act in furtherance of the conspiracy, is fatally defective for such failure." Id. at 197, 724 N.E.2d 781.
{¶ 19} R.C. 2923.01 states:
{¶ 20} (Emphasis added.)
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