State v. Rosemond

• Citation: 150 N.E.3d 563,2019 Ohio 5356
• Decision Date: 27 December 2019
• Docket Number: NO. C-180221,C-180221
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Anthony ROSEMOND, Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

150 N.E.3d 563

2019 Ohio 5356

STATE of Ohio, Plaintiff-Appellee,

v.Anthony ROSEMOND, Defendant-Appellant.

NO. C-180221

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: December 27, 2019

OPINION

Mock, Presiding Judge.

{¶1} In eight assignments of error, defendant-appellant Anthony Rosemond claims that he was improperly convicted of murder with specifications, a special felony, three counts of felonious assault with specifications, felonies of the second degree, three counts of having a weapon while under a disability, felonies of the third degree, trafficking in heroin with a specification, a felony of the second degree, and trafficking in cocaine with a specification, a felony of the fourth degree. We affirm the decision of the trial court.

{¶2} The counts in the indictment issued against Rosemond arise from two separate core incidents. The first nine counts relate to an event that occurred on December 8, 2015. On that date, gunmen attacked four individuals who were sitting inside of a car near the Schwarz Market in Cincinnati. The shooting resulted in the death of one individual and the injury of the other three. As a result of those events, Rosemond was indicted for murder, felony murder, three counts of felonious assault causing serious bodily harm, three counts of felonious assault with a deadly weapon, and one count of having a weapon while under a disability.

{¶3} The second event occurred five days prior. On that date, police officers initiated a traffic stop of a vehicle at the nearby Fay Apartments in which they later came to believe Rosemond had been a passenger. After finding cocaine in the car, officers then searched a unit in the Fay Apartments to which they believed Rosemond had access. After police found additional drugs and two handguns, Rosemond was indicted for trafficking in and possession of heroin, trafficking in and possession of cocaine, and two counts of having a weapon while under a disability.

{¶4} Following several pretrial motions, the cause was tried before a jury for six days. Rosemond was found guilty on all counts and related specifications. At sentencing, the trial court merged a number of counts as allied offenses of similar import. Rosemond was then sentenced to an aggregate total of 57 years to life in prison.

The Traffic Stop and Fay Apartment Search

{¶5} Early in the morning of December 3, 2015, Cincinnati police officers Robert Wilson and Danny Brockmann were patrolling the Fay Apartments—a large apartment complex on the west side of the city. As they were driving down one of the streets within the complex, they were passed by a vehicle traveling at a high rate of speed. The officers testified that they believed they saw two adults in the front seats of the car as it drove past. The officers turned their cruiser around and attempted to follow the vehicle, but soon lost sight of it.

{¶6} A few minutes later, the officers came upon the vehicle in a parking lot behind one of the buildings in the complex. By the time officers approached the vehicle, there was one adult in the driver's seat and no front passenger. The driver was a woman named Jourdan Bailey. Officers described her as rude and curt in her interactions with them. Bailey's five-year-old son was in the back seat of the car. Bailey denied living in the complex, but the computer records the officers checked demonstrated otherwise. Bailey told the officers that she was visiting a cousin who lived in the complex, and that she had driven behind the apartment building to let her son urinate there.

{¶7} The officers searched the vehicle and found a bag of cocaine lodged between the passenger seat and the door. They also found a large, distinctive Pelle Pelle leather jacket with a state-issued identification card belonging to Rosemond in the pocket. The officers retained the identification and returned the jacket to the back seat. Bailey was arrested for cocaine possession. When Bailey was arrested, her son began to cry and told officers that his dad had just jumped out of the car.

{¶8} The officers noticed that Bailey had a key on her key chain that they recognized as a key for an apartment in the Fay Apartments. The officers went to the apartment in which records indicated Bailey resided. When they determined that the key opened the door, they conducted a protective sweep of the apartment to ensure that Rosemond was not inside. Their intent was to secure the apartment while they obtained a search warrant. After obtaining the search warrant, officers found a digital scale, heroin, cocaine, marijuana, and two pistols.

The Death of Jonathan Austin

{¶9} Five days later, Jonathan Austin and three friends arrived at the Schwarz Market, located near the Fay Apartments. Austin had been trying to keep a low profile because he had testified in the trial of a man who had killed Austin's cousin. The four men were at the market to purchase marijuana. Ariontez Nared went into the store to purchase marijuana, while Austin, Deion Willingham, and Dante Williams waited in the car. When Nared returned to the vehicle, two to three gunmen approached the vehicle and began firing. Austin died at the scene from his injuries, and Nared, Willingham, and Williams were all injured.

{¶10} The shooting was captured by various security cameras in the area. One of the officers who had arrested Bailey viewed the video recordings and recognized the Pelle Pelle jacket from the Fay Apartment stop. At trial, Nared testified and identified Rosemond as the shooter. The jacket, when retrieved by law enforcement, had gunshot residue on the sleeve.

Severance

{¶11} In his first assignment of error, Rosemond claims that the trial court erred when it allowed the counts related to the December 3 traffic stop to be tried along with those related to the December 8 shootings. Before trial, counsel had filed a motion to sever the December 3 counts from the December 8 counts. Citing only Crim.R. 14, he argued that the two sets of counts "occurred separate and apart" from one another, they were different kinds of offenses, and the admission of the evidence concerning one set of offenses would not have been proper in a trial of the second set pursuant to Evid.R. 404(B). Rosemond filed a supplemental motion for severance, again citing only Crim.R. 14, arguing that the two of the weapons-under-disability counts should be tried separately. He later filed a second supplemental motion, again citing only Crim.R.14, asking the trial court to sever a third weapons-under-disability charge. Trial counsel renewed the motion, as supplemented, at the beginning of the case; but he failed to renew it at the close of the state's case or at the close of the evidence. While the dissent indicates that we have confused Crim.R. 14 with Crim.R. 8, Rosemond never made his argument pursuant to Crim.R. 8. This includes the fact that Rosemond's argument on appeal was limited to arguing the failure of the trial court to grant his "motion to sever" filed pursuant to Cri.R. 14. Rosemond has not argued—below or to this court—that the joinder of offenses violated Crim.R. 8. We therefore restrict our analysis to the arguments presented below.

{¶12} Rosemond recognizes that he failed to properly renew his motion below, but argues that the trial court committed plain error when it failed to order severance. While counsel for Rosemond did renew the motion, he renewed it at the beginning of trial. This was insufficient. As this court recently noted, the failure to renew a motion to sever at the close of the state's case and the close of the evidence constitutes a waiver of that argument on appeal. State v. Savage , 1st Dist. Hamilton No. C-180413, 2019-Ohio-4859, 2019 WL 6353778, ¶ 17, citing State v. Bennie , 1st Dist. Hamilton No. C-020497, 2004-Ohio-1264, 2004 WL 535277, ¶ 20.

{¶13} But a mere forfeiture by failure to preserve an issue does not extinguish a claim of plain error under Crim.R. 52(B). See State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23. To prevail on a claim of plain error, an accused must show that an error occurred, that the error was plain, and that the error affected the outcome of the trial. See Crim.R. 52(B) ; State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). An appellant must demonstrate a reasonable probability that the error resulted in prejudice. See State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. In this case, we conclude that Rosemond cannot demonstrate plain error because the trial court did not abuse its discretion when it denied the motion to sever.

{¶14} Generally, the law favors joinder because a single trial will conserve time and expense and may minimize the potentially disparate outcomes that can result from successive trials before different juries. State v. Schiebel , 55 Ohio St.3d 71, 86-87, 564 N.E.2d 54 (1990). Where a defendant claims that joinder was improper, he must affirmatively show that his rights were prejudiced. See State v. Roberts , 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980) ; see also Crim.R. 14.

{¶15} A reviewing court will conclude that joinder was not prejudicial if it makes one of two determinations. State v. Wiles , 59 Ohio St.3d 71, 77, 571 N.E.2d 97 (1991). The first determination, known as the "other acts test," may negate prejudice from joinder if the state could have introduced evidence of one offense in a separate trial of another offense under the other-acts provision of Evid.R. 404(B). State v. Franklin , 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991). The second determination, known as the "joinder test," requires only a showing that the evidence of each of the joined offenses is "simple and distinct." Id. As this court described it,

[t]he object of the "simple and distinct" test is to prevent the jury from improperly considering evidence of various crimes as corroborative of each other. "[T]he very essence of this rule is that the evidence be

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