State v. Smith

• Decision Date: 28 October 2016
• Docket Number: No. 15CAA 0077.,15CAA 0077.
• Parties: STATE of Ohio, Plaintiff–Appellee v. Eric L. SMITH, Defendant–Appellant.
• Court: Ohio Court of Appeals

76 N.E.3d 551

2016 Ohio 7566

STATE of Ohio, Plaintiff–Appellee

v.Eric L. SMITH, Defendant–Appellant.

No. 15CAA 0077.

Court of Appeals of Ohio, Fifth District, Delaware County.

Oct. 28, 2016.

Carol O'Brien, Andrew Bigler, Delaware, OH, for plaintiff-appellee.

Eric Allen, Gahanna, OH, for defendant-appellant.

SHEILA G. FARMER, P.J., W. SCOTT GWIN, J., PATRICIA A. DELANEY, J.

OPINION

GWIN, J.

{¶ 1} Appellant Eric Smith "[Smith"] appeals his convictions and sentences after a jury trial in the Delaware County Court of Common Pleas on one count of aggravated burglary, a felony of the first degree, in violation of RC. 2911.11(A)(2), with a firearm specification, a repeat violent offender specification and a forfeiture specification; one count of kidnapping, a felony of the first degree, in violation of R.C. 2905.01, with a firearm specification, a repeat violent offender specification and a forfeiture specification; one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with a firearm specification, a repeat violent offender specification and a forfeiture specification; one count of having weapons under disability, a felony of the third degree, in violation of R.C. 2923.13(A)(2) ; one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), with a firearm specification, a repeat violent offender specification and a forfeiture specification; one count of felonious assault, a second degree felony, in violation of R.C. 2903.11(A)(2), with a firearm specification, a repeat violent offender specification and a forfeiture specification; and one count of having weapons under disability, a felony of the third degree, in violation of R.C. 2923.13(A)(2).

Facts and Procedural History

{¶ 2} On January 3, 2015, and into the morning of January 4, 2015, two individuals broke into the home of David McCourt. They bound him with zip tie handcuffs and laid him down in front of his television. These two people took cash, five guns, and a Rolex watch. McCourt waited until he was sure that the people who broke into his home were gone. He then went to the Powell Police Department and could not find anyone there. McCourt is seen on the surveillance tape at the police department at around 5:00 a.m. (2T. at 234–235). He leaves and goes to a friend's house in Grove City, Ohio. He buys a new cell phone and calls the police. He delayed in calling the police because he was taking bets on a 12:30 p.m. game. (2T. at 228). The police respond to his home in Delaware County and begin an investigation. McCourt could not identify anyone who robbed him on that day.

{¶ 3} McCourt testified that $33,000.00 and a Rolex watch were among the items taken from his home on January 3, 2015. McCourt further testified that one of the assailants had a revolver and the other a semi-automatic handgun with a long magazine or clip. McCourt described the offenders as one being taller and one shorter, that the assailants wore all black/dark clothing, hoods, masks and gloves, and stated the offenders from the second incident appeared to be the same as from the first (2T. at 188; 190; 3T. at 358; 361).

{¶ 4} Dennis Waddell testified that in connection with the first incident on January 3, 2015, he provided Smith with the victim's address. Smith's cousin, Wayne Kelso, is seen on the surveillance tape on January 5, 2015, one day after the first incident, trying to pawn McCourt's Rolex watch. Waddell testified that it was Smith who drove him and Kelso to the pawnshop. (4T. at 562). Smith purchased a Dodge Charger for $6,145.00 in cash on January 26, 2015. (4T. at 586). Smith spends $12,000.00 over the course of two days after the first incident and leading up to the second incident. McCourt testified that the money taken from his house was in $100.00 bills. (3T. at 373). $1,000.00 in $100.00 bills was recovered from Smith's car. (4T. at 580).

{¶ 5} Smith was pulled over for a traffic violation on March 16, 2015. The officer observed flex ties formed as handcuffs, gloves, and a ski mask in Smith's car. (2T. at 257; 263).

{¶ 6} On March 27, 2015, two individuals again break into Mr. McCourt's home in Delaware County, Ohio. This time McCourt is pistol-whipped in his front yard. McCourt attempted to shoot his attackers but the gun jammed. McCourt runs to his neighbor's home and calls 9–1–1.

{¶ 7} Smith, Tammy Wright and Dennis Waddell are all caught together moments after the second incident, within a mile of the McCourt's home with black ski masks, a Glock handgun with an extended magazine, and zip ties formed as handcuffs in a vehicle fitting the description McCourt gave to officers. (3T. at 362; 390; 412–420; 433–437; 456458). Waddell testified that Smith showed him a black revolver on the way to the McCourt's home on March 27, 2015. (4T. at 515).

{¶ 8} Tammy Wright testified she picked up both Waddell and Smith and drove them to McCourt's neighborhood on March 27, 2015. (3T. at 409–415). Wright was driving a green Jeep Cherokee. She observed Smith and Waddell get out of a Dodge Charger. Both Waddell and Smith were dressed in black from head to toe. (3T. at 415).

{¶ 9} Smith and Waddell each called Wright to pick them up after the incident. (3T. at 418–419). Smith and Waddell were not at the same location when she picked them up. (3T. at 419–420). A .40 caliber Glock with a long magazine was recovered from Wright's Jeep Cherokee. (3T. at 442; 452). Waddell admitted that he had a Glock handgun with an extend magazine. (4T. at 514).

{¶ 10} McCourt gave a description of guns used in the first and second robbery. That description is similar to the gun that witnesses testified Smith had on him and similar to the gun found in the vehicle after the second incident. (2T. at 195–196; 3T. at 358–359; 1T. at 514–515).

{¶ 11} Following deliberation, the jury found Smith guilty of all charges and specifications in the indictment.

{¶ 12} The trial court sentenced Smith on count one to eight years in addition to the three-year firearm specification. As to count two, Smith was sentenced to five years in addition to the three-year gun specification. As to count three, Smith was sentenced to a term of three years in prison to be served concurrently with count one. As to count five, Smith was sentenced to a term of twelve months in prison. This is to be served concurrently with count one. As to count six, Smith was sentenced to a term of nine years to be served consecutive to counts one and two as well as an additional three-year gun specification. As to count seven, Smith was sentenced to a term of six years to be served consecutively to counts one, two, and six. He was also sentenced on a firearm specification.

Assignments of Error

{¶ 13} Smith raises nine assignments of error,

{¶ 14} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED HIS REQUEST FOR A CONTINUANCE.

{¶ 15} "II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN IT DENIED HIS REQUEST FOR A CONTINUANCE.

{¶ 16} "III. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN IT LIMITED CROSS–EXAMINATION REGARDING GAMBLING OF THE PROSECUTING WITNESS.

{¶ 17} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED TESTIMONY REGARDING BAD ACTS EVIDENCE AGAINST THE APPELLANT.

{¶ 18} "V. THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO DUE PROCESS GUARANTEED BY THE FIFTH AMENDMENT MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN IT ALLOWED OTHER ACTS EVIDENCE TO BE PRESENTED.

{¶ 19} "VI. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT.

{¶ 20} "VII. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO CONVICT THE APPELLANT IN VIOLATION OF THE FOURTEENTH AMENDMENT AND IN DIRECT VIOLATION OF THE HOLDING OF JACKSON V. VIRGINIA.

{¶ 21} "VIII. THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 22} "XI. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE FACTORS LISTED IN 2929.14(C)(4)(a)–(c) APPLIED."

I. & II.

{¶ 23} In his first assignment of error, Smith contends the trial court abused its discretion in denying his attorney's request for a continuance made the morning of trial. In his second assignment of error, Smith argues that the trial court violated his right to due process by denying counsel's request for a continuance made the morning of trial.

{¶ 24} Ordinarily a reviewing court analyzes a denial of a continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). If, however, the denial of a continuance is directly linked to the deprivation of a specific constitutional right, some courts analyze the denial in terms of whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772 (6th Cir.1986). A defendant has an absolute right to prepare an adequate defense under the Sixth Amendment of the United States Constitution and a right to due process under the Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854 (6th Cir.2000). The United States Supreme Court has recognized that the right to offer the testimony of witnesses and compel their attendance is constitutionally protected. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Ohio Supreme Court recognized that the right to present a witness to establish a defense is a fundamental element of due process of law....