State v. Tapscott
| Decision Date | 14 September 2012 |
| Docket Number | No. 11 MA 26.,11 MA 26. |
| Citation | 978 N.E.2d 210 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Allen TAPSCOTT, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Paul Gains, Prosecuting Attorney, Ralph Rivera, Assistant Prosecuting Attorney, Youngstown, OH, for plaintiff-appellee.
Rhys B. Cartwright–Jones, Youngstown, OH, for defendant-appellant.
{¶ 1} Defendant-appellant Allen Tapscott appeals from the judgment of the Mahoning County Common Pleas Court which sentenced him after a jury found him guilty of aggravated burglary and two counts of aggravated robbery. He argues on appeal that he was prejudiced by the admission of testimony that the female victim was pregnant and that her pregnancy was high-risk. He also urges that the two counts of aggravated robbery, one for each victim, should have been merged. For the following reasons, these arguments are overruled, and his convictions are upheld.
{¶ 2} However, we find a plain error in the trial court's decision to sentence appellant concurrently on offenses that the court merged as a merged offense receives no sentence. Consequently, we remand for resentencing where the state can elect the offenses that will receive sentences.
{¶ 3} As a result of a reported home invasion at the Westlake Terrace Apartments, appellant was indicted on two counts of aggravated robbery with a deadly weapon, one count of aggravated burglary with a deadly weapon, three firearm specifications, and one count of having a firearm while under disability. The last count was severed for a bench trial to take place after a jury trial on the first three counts.
{¶ 4} At the jury trial, the male victim testified that he was at his girlfriend's apartment at the Westlake projects on November 1, 2010 at 6:50 p.m. when he heard noises at the front door (which had been barricaded) and then heard someone say, “get the money, I know he has money.” (Tr. 258). At that point, appellant entered by way of the back door. The victims knew appellant through the neighborhood and because the female victim had helped appellant set up a Facebook page a few days before. (Tr. 257, 309).
{¶ 5} The male victim stated that appellant pointed a gun at the female victim and said he “was going to shoot her, kill my kid, kill me.” (Tr. 255). According to the victim, appellant demanded pills and money. The male victim replied that he could have the pills on the counter (which were prenatal vitamins) and that he had money at the neighbor's apartment. Appellant then allowed the female victim to leave to retrieve the money. The male victim testified that appellant ransacked the apartment while pointing the gun at him and threatened to hit him in the head with the gun if the female did not return. (Tr. 255, 260). It was reported that appellant took $40 cash and a $200 money order and then left when he heard sirens. (Tr. 260, 295).
{¶ 6} The female victim confirmed that appellant entered through the back door, pointed a gun at her, threatened to kill her and the male victim, and asked for pills and money. (Tr. 304, 306). She also heard someone instruct appellant to get the money. (Tr. 307–308). She related that when appellant allowed her to leave, she went to the neighbor's apartment and called the police. (Tr. 308). This neighbor confirmed that the female victim, who was crying and upset, asked to use his telephone because her boyfriend was being robbed. (Tr. 351).
{¶ 7} A police officer testified that when they encountered the male victim he had been following appellant to see whether he entered another apartment. The victim appeared frantic and seemed relieved to see the police. (Tr. 368). The officer confirmed that the apartment had been ransacked, noting that he saw a computer and electronic equipment on the floor. (Tr. 373). The officer stated that the victims immediately began making plans to move from the apartment that night. (Tr. 374). The officer also testified that the female victim seemed very scared when she returned to pack her belongings. (Tr. 377).
{¶ 8} Appellant then testified in his own defense. Appellant stated that the male victim had been looking for a gun for his brother. Appellant asked around and was able to procure one that he knew did not work. (Tr. 514–515). Appellant stated that on October 29, 2010, he arrived at the male victim's apartment with the gun. He related that the victim called his brother, and when the brother arrived, appellant sold him the gun for $120. (Tr. 517–518). The female victim then helped appellant set up a Facebook page. (Tr. 519).
{¶ 9} Appellant said that the male victim called him on October 30 to say that his brother wanted his money back because the gun did not work. (Tr. 520). Appellant testified that he originally agreed to refund the money when he was able to, but when the male victim kept calling him, he told him that he would not be refunding the money, which upset the male victim. (Tr. 520). Appellant then related that when he went to the apartment complex on October 31, the male victim wanted to fight him, and so, they nearly engaged in a knife fight in front of a group of people at the projects. (Tr. 521–522). He said he was back at the complex on November 1 (the day of the reported incident) and that he saw the female victim outside but did not speak to her and did not enter their apartment or rob them. (Tr. 525).
{¶ 10} The jury found appellant guilty on all three counts with firearm specifications. The court thereafter found him guilty of the weapons under disability charge. In a January 28, 2011 entry, the court sentenced appellant to ten years on the first three offenses, three years on each firearm specification, and five years on the weapons under disability charge. The court merged the firearm specifications into one specification. The court also held that the aggravated burglary would merge with aggravated robberies and ran those sentences concurrently. The court refused appellant's request to merge the two aggravated robberies as well and ran these sentences consecutively to each other, to the sentence on the specification, and to the weapons sentence, for a total of twenty-eight years. The within appeal followed.
{¶ 11} Appellant's first assignment of error provides:
THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE OF THE ALLEGED VICTIM'S ‘HIGH RISK’ PREGNANCY IN CONTRAVENTION OF RULES 401, 402, AND 403 OF THE OHIO RULES OF EVIDENCE, WHICH PROSCRIBE ADMISSION OF IRRELEVANT AND PREJUDICIAL EVIDENCE.
{¶ 12} Appellant complains here about various places in the testimony where the jury was informed that the victim was in the midst of a high-risk pregnancy at the time of the offense. The jury was not informed that within days of the offense, she gave birth and the baby died. It was this latter fact that the defense asked to be excluded in their written motion in limine where they asked the court to prohibit the state from introducing evidence of the female victim's medical condition after the robbery.
{¶ 13} In discussing this motion before trial, the prosecutor asked for guidance on how to proceed and noted that the victim's condition helped emphasize her credibility. (Tr. 8–9). The court agreed that the death of the baby was not pertinent but opined that the fact of pregnancy seemed unavoidable. (Tr. 10–12). The court suggested that the state stick to the elements of the offenses and pointed out that certain facts may become pertinent depending upon cross-examination. (Tr. 10–11).
{¶ 14} The male victim testified first. When the prosecutor asked if he lived in the apartment with his girlfriend, he answered: (Tr. 252–253). When asked who was home during the incident, the male victim added to his answer, (Tr. 254). As aforementioned, he also testified that appellant “said he was going to shoot her, kill my kid, kill me.” (Tr. 255).
{¶ 15} Thereafter, when the prosecutor asked the female victim who lived with her at the apartment, she answered, “It was myself, but I was going through a high-risk pregnancy so my boyfriend was there with me.” (Tr. 302). The prosecutor asked how far along she was at the time to which she responded that she had been five months pregnant. (Tr. 302–303). The prosecutor then inquired, “And as far as being a high-risk pregnancy, what orders did you have from the doctor?” She replied, “I was supposed to be on bedrest * * * I had to take two medicines for my contractions * * *.” (Tr. 303).
{¶ 16} The responding officer testified in pertinent part: (Tr. 374). When asked to describe the female victim's demeanor, the officer responded in part, (Tr. 377).
{¶ 17} Appellant first claims that all of this testimony about a high-risk pregnancy was not relevant and thus was inadmissible under Evid.R. 401 and 402. Appellant alternatively argues that even if the evidence was relevant, it should have been excluded under Evid.R. 403(A) or (B).
{¶ 18} Initially, it must be pointed out that the defense's written motion in limine did not ask for exclusion of evidence of a high-risk pregnancy. That is, the motion specifically asked to exclude evidence of the victim's medical condition after the offense, not before or during the offense. Accordingly, the trial court agreed that the death of the baby should not be discussed, and it was not in fact discussed...
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