State v. Moore

• Decision Date: 23 September 2020
• Docket Number: No. 18 MA 0055,18 MA 0055
• Citation: 159 N.E.3d 842
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Brandon MOORE, Defendant-Appellant.
• Court: Ohio Court of Appeals

159 N.E.3d 842

STATE of Ohio, Plaintiff-Appellee,

v.Brandon MOORE, Defendant-Appellant.

No. 18 MA 0055

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

Dated: September 23, 2020

Atty. Paul Gains, Prosecutor and Atty. Ralph Rivera, Assistant Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee.

Atty. Rachel Bloomekatz, 1148 Neil Avenue, Columbus, Ohio 43201, for Defendant-Appellant.

BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.

OPINION AND JUDGMENT ENTRY

Donofrio, J.

{¶1} Defendant-appellant, Brandon Moore, appeals from a Mahoning County Common Pleas Court judgment sentencing him to 50 years in prison on his convictions for three counts of aggravated robbery, three counts of rape, three counts of complicity to rape, kidnapping, aggravated menacing, and multiple firearm specifications.

{¶2} This matter began on August 21, 2001, when appellant was 15 years old. That night,

Jason Cosa pulled into his driveway and was confronted by appellant, who pushed a gun into Jason's face and demanded money. * * * 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.

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 [driven by codefendant Andre Bundy]. M.K. had noticed this vehicle stopping nearby prior to the attack.

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.

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.

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.

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.

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.

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.

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.

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.]."

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.

State v. Moore , 161 Ohio App.3d 778, 2005-Ohio-3311, 832 N.E.2d 85 (7th Dist.), ¶¶ 2-12.

{¶3} Appellant, Bunch, and Bundy were tried together. The jury found appellant guilty of all counts and all specifications. The trial court subsequently sentenced him to maximum, consecutive sentences on the felony counts. The court also sentenced appellant to a prison term for each of the firearm specifications, also to be served consecutively. Appellant's total sentence was 141 years. At the sentencing hearing, the court told appellant, "I want to make sure you never get out of the penitentiary, and I'm going to make sure that you never get out of the penitentiary."

{¶4} As the Ohio Supreme Court aptly observed, appellant's "appellate history is lengthy and knotty." State v. Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 14. Relevant to this appeal the Ohio Supreme Court set out the following:

In Moore's first appeal, State v. Moore , 161 Ohio App.3d 778, 2005-Ohio-3311, 832 N.E.2d 85 (7th Dist.) (" Moore I "), the appellate court vacated Moore's conviction for conspiracy to commit aggravated robbery as well as the accompanying firearm specification. Id. at ¶ 23. As for the other ten firearm specifications, the appellate court instructed the trial court to impose at resentencing a total of four separate terms: one for the specification attached to the charge for the aggravated robbery of Cosa and Hammond and three for the specifications attached to the charges for the aggravated robbery, rape, and kidnapping of M.K. Id. at ¶ 55.

On September 7, 2005, the trial court, on remand, resentenced Moore according to the appellate court's instruction. The new sentence totaled 112 years.

Moore appealed again, and in State v. Moore , 7th Dist. Mahoning No. 05 MA 178, 2007-Ohio-7215, 2007 WL 4696843 (" Moore II "), the appellate court vacated the entire sentence and remanded for resentencing because Moore's previous sentence had involved judicial fact-finding of the kind declared unconstitutional by this court in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

On February 5, 2008, the trial court resentenced Moore to the aggregate 112-year prison term. The judge told Moore at the sentencing hearing, "[I]t is the intention of this court that you should never be released from the penitentiary."

* * * Moore appealed his resentencing, but his court-appointed counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw from the case; * * *. The court went on to consider the assignment of error that Moore had raised in his pro se brief-that his resentencing pursuant to Foster violated his due-process rights-and reviewed the entire record, concluded that Moore's appeal was meritless, and affirmed the trial court's judgment. [ State v. Moore , 7th Dist. Mahoning No. 08 MA 20, 2009-Ohio-1505, 2009 WL 825758 ("Moore III "),] at ¶ 24. The court announced its decision on March 24, 2009. It is this decision that Moore moved the court to reconsider-but he did not do so until September 16, 2013.

In the meantime, Moore pursued other avenues of relief, and in that branch of his appellate history, first sought relief based on Graham [v. Florida] , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825. On December 30, 2009, Moore filed a petition for a writ of mandamus and/or a writ of procedendo in the Seventh District Court of Appeals, seeking to compel the trial court to issue a final, appealable judgment entry of sentence for his original 2002 convictions that would comply with Crim.R. 32(C), containing all the elements set forth by this court in State v. Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. On March 30, 2010, the court of appeals partially granted Moore's petition, ordering the trial court to issue a revised sentencing entry that complied with Crim.R. 32(C). State ex rel. Moore v.

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