State v. Smith, 13AP-194
| Decision Date | 27 February 2014 |
| Docket Number | C.P.C. No. 12CR-2300,No. 13AP-194,13AP-194 |
| Citation | 2014 Ohio 709 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Marcus W. Smith, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.
Thompson Steward, LLC, and Lisa F. Thompson, for appellant.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Defendant-appellant, Marcus W. Smith, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to bench trial, of three counts of robbery, in violation of R.C. 2911.02, all with gun specifications, and one count of having a weapon under disability, in violation of R.C. 2923.13. Because (1) sufficient evidence and the manifest weight of the evidence support defendant's convictions, and (2) defendant was not deprived of his constitutional right to effective counsel, we affirm.
{¶ 2} The State indicted defendant on May 14, 2012 on three counts of aggravated robbery, felonies of the first degree, three counts of robbery, felonies of the secnd degree, three counts of kidnapping, felonies of the first degree, one count of aggravated burglary, a felony of the first degree, and one count of theft, a felony of thefifth degree, all with gun specifications, and one count of having a weapon while under disability, a felony of the third degree. Defendant waived his right to a jury trial, and agreed to have the matter tried to the bench.
{¶ 3} The events giving rise to the indictment occurred on February 16, 2012. At that time, defendant's sister, Danita Anderson, lived at 844 Oakland Park Avenue, in Columbus, Ohio, with her girlfriend, Whitney Surles, Whitney's mother, Charlotte Surles, and Whitney's brother, William Surles. Defendant had also been living at the Oakland Park residence for two-to-three months prior to the incident. Danita and Whitney shared a bedroom in the upstairs portion of the house, and defendant had his own bedroom in the upstairs portion of the house.
{¶ 4} On February 16, 2012, in the afternoon, defendant went to the Oakland Park residence and knocked on the door. Charlotte was lying on the couch in the living room, saw defendant at the door, and opened the door. Charlotte stated that she asked defendant how he was doing, and defendant "kind of mumbled something," such that Charlotte "could tell that by the look on his face that something was wrong." (Tr. 19.) Defendant walked past Charlotte "and proceeded to go up the steps to the room that he normally would sleep in." (Tr. 19.)
{¶ 5} Charlotte also went upstairs and knocked on Danita's and Whitney's door, to let them know defendant was there and that something seemed wrong with him. Charlotte stated that, as she turned to leave Danita's and Whitney's room, defendant was standing there, and "kind of peeked his head in" and said " " (Tr. 22.) Charlotte stated she turned to leave, but defendant pushed her back into the room and said (Tr. 22.)
{¶ 6} Charlotte, Danita, and Whitney all testified that defendant then began waiving a black handgun around and, as he had the "gun pointed toward [them]," he was screaming (Tr. 77.) Whitney explained that defendant made all the women sit on the couch in the bedroom, and "had us with the gun to our head," while he kept asking " 'Where's the money?' " (Tr. 117.) The women tried to tell defendant they did not have any money, but defendant began to rummage around the room. Danita explained that defendant took money from "off the bed, the side of the dresser, which was in a wallet and under a pillow." (Tr. 80-81.) Charlotte testified that "any money that [defendant] found underneath the bed, the drawers, [defendant] just took it." (Tr. 26.) Charlotte attempted to tell defendant that she had money in her purse downstairs, and that she could go get it, but he said " (Tr. 24.)
{¶ 7} While defendant had the three women at gun point, Charlotte's blood pressure began to rise and she fell to the couch in the bedroom. Danita and Whitney believed Charlotte was about to have a heart attack. When defendant saw the "commotion" going on with Charlotte, he "pointed a gun" and said "Ms. Charlotte, sit the fuck down." (Tr. 79.) Defendant then left the bedroom and headed downstairs, and Danita followed defendant down the stairs. Danita explained that defendant went down the steps to where "Ms. Charlotte had a dresser downstairs with medication and her purse and stuff like that," and began "digging through her things." (Tr. 79.) Danita said " " and, as defendant "still had the gun toward [Danita]," Danita saw defendant take "some more money on top of that, and * * * [Charlotte's] prescription medication" from the dresser and the purse. (Tr. 88.) Defendant then "ran outside and had the gun pointed toward us at the house." (Tr. 79.) Danita stated that defendant was yelling, (Tr. 79-80.) Defendant eventually ran across the street and down Oakland Park Avenue.
{¶ 8} Charlotte testified that defendant took about $4,000 from Danita's and Whitney's room. Charlotte stated that a good portion of those funds belonged to her, explaining that she would give her money to Whitney because Whitney was "pretty good with money and keeping just valuable stuff." (Tr. 27-28.) Charlotte explained that, at the time, she had recently received her income tax return check for $2,600, and that she had also received $2,400 from a legal settlement. Charlotte explained that, although she was not working in 2012, she had worked for Volunteers of America in 2011. Charlotte also explained that, after the incident, she informed the police that she was missing prescription medications which had been in her purse.
{¶ 9} Danita and Whitney both testified that defendant had taken nearly $5,000 from the house. Danita stated the money was a combination of funds from all three women's income tax returns, and Charlotte's money from the legal settlement. Danitastated that she worked at a daycare and at a warehouse; Whitney stated that she had seasonal employment at a warehouse.
{¶ 10} After the incident, Danita called her mother, Gertrude Stubbs, and told her that defendant had (Tr. 106.) Gertrude testified that Danita had called her the day of the incident and "stated that [defendant] had came over and robbed them." (Tr. 151.) Gertrude stated Danita told her that defendant had taken $8,000 from the Oakland Park residence. Ms. Stubbs said she asked defendant to return the money, and defendant told her "[i]t wasn't money, that it was some pills." (Tr. 156.) Defendant told his mother he took "two handfuls of pills" from the Oakland Park residence. (Tr. 16263.) Defendant's other sister, Josephina Anderson, testified that defendant told her he did not have a gun during the incident, and did not take any money, but "said he took some pills." (Tr. 169.) Gertrude noted she was not surprised to learn that defendant had taken pills and not money, stating: "Danita and Whitney - that's how they make their money." (Tr. 161.) Josephina also testified that Danita was "into" drugs and "sells drugs." (Tr. 167.)
{¶ 11} The court issued its decision from the bench. The court found the "idea that there was $8,000 worth of cash or $5,000 worth of cash in the room or in the house" was not worthy of belief. The court, however, did not "believe that the victims in this case, Danita, Whitney and the Surleses would have allowed Mr. Smith to go up and take anything and just leave the way he left unless there was some threat of force being alleged there." (Tr. 196.) Thus, the court stated that "with respect to the money testimony, I don't necessarily find that credible." (Tr. 196.) The court noted that it did believe that defendant went "to the house and * * * he did take the pills, and * * * the only way he could have taken those would have been by force." (Tr. 196-97.) The court entered a finding of not guilty to the aggravated robbery charges and the theft charge; but entered a finding of guilty as to the robbery charges and attendant gun specifications, and the having a weapon under disability charge. The court granted defendant's Crim.R. 29 motion and acquitted him of the aggravated burglary and the kidnapping charges.
{¶ 12} The court issued its final judgment entry imposing sentence on February 6, 2013. The court sentenced defendant to 2 years on each robbery conviction,and 24 months on the having a weapon under disability conviction, all to be served concurrently to each other. The court imposed an additional 3 consecutive years of actual incarceration on the firearm specification, bringing defendant's total term of imprisonment to 5 years.
{¶ 13} Defendant appeals, assigning the following errors:
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