State v. Vance Robinson and Richard Sales, 85-LW-4558

CourtOhio Court of Appeals
Writing for the CourtCORRIGAN, J.
PartiesSTATE OF OHIO Plaintiff-Appellee v. VANCE ROBINSON AND RICHARD SALES Defendant-Appellants
Decision Date24 October 1985
Docket Number49518 & 49577,49501,85-LW-4558

STATE OF OHIO Plaintiff-Appellee
v.

VANCE ROBINSON AND RICHARD SALES Defendant-Appellants

NOS. 49501, 49518 & 49577.

85-LW-4558 (8th)

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 24, 1985


CRIMINAL APPEAL FROM COURT OF COMMON PLEAS CASE NO. 187731.

For Plaintiff-Appellee: John T. Corrigan, Esq., Cuyahoga County Prosecutor, Frank Gaspar, Esq., Assistant County Prosecutor, Courts Tower - Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.

For Defendant-Appellants: Paul Mancino, Jr., Esq., One Public Square, Suite 1001, Cleveland, Ohio 44113, Jeff T. Zucco, Esq., 900 Engineers Building, Cleveland, Ohio 44114, Bruce Tyler Wick, Esq., 1525 Leader Building, Cleveland, Ohio 44114.

JOURNAL ENTRY AND OPINION

CORRIGAN, J.

On December 8, 1983, the defendants Richard Sales and Vance Robinson were jointly indicted by a grand jury for one count of aggravated burglary (R.C. 2911.11), with aggravated felony specifications, one count of grand theft (R.C. 2913.01), with violence specifications, and one count of possessing criminal tools (R.C. 2923.24), with violence specifications.

On October 5, 1984, a joint trial by jury commenced. On October 19, 1984, the jury returned guilty verdicts as to all counts, with count two being reduced to a misdemeanor. On October 23, 1984 each defendant was sentenced to terms of ten-to-twenty-five years on count one, with ten years of actual incarceration; three-to-ten years concurrently on count two; and three-to-ten years on count three, also to run concurrently.

Both defendants have appealed their convictions. Their appeals have been consolidated for review, since for the most part the errors assigned are the same.

The assignments are as follow:

I. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL AND STATUTORY RIGHT TO A SPEEDY TRIAL AND THE COURT ERRED IN NOT DISMISSING THE CASE
II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS ILLEGALLY AND UNLAWFULLY ARRESTED AND THEREAFTER CHARGED BY MEANS OF A PRETEXTUAL CRIMINAL COMPLAINT SIGNED IN FRONT OF AN INVESTIGATING OFFICER WHO COULD NOT ACT AS A NEUTRAL AND DETACHED MAGISTRATE
A) DEFENDANT WAS DENIED HIS RIGHT TO A DETERMINATION OF PROBABLE CAUSE BY A NEUTRAL AND DETACHED MAGISTRATE
B) THE COMPLAINT FAILS TO ALLEGE ANY FACTS SHOWING PROBABLE CAUSE
C) THE ISSUANCE OF THE COMPLAINT VIOLATES RULE 4 OF THE OHIO RULES OF CRIMINAL PROCEDURE.
D) THE ARREST OF THE DEFENDANT WAS WITHOUT PROBABLE CAUSE AND THEREFORE IMPROPER.
III. THE COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO GRANT TO THE DEFENDANT A SEPARATE TRIAL.
IV. THE COURT COMMITTED PREJUDICIAL ERROR IN NOT PERMITTING THE DEFENSE WITNESS, WANDA BALLENTINE, TO TESTIFY AS TO HER CONVERSATION WITH THE DEFENDANT, RICHARD SALES, ON THE DATE IN QUESTION.
V. THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED THE DEFENDANT DUE PROCESS OF LAW WHEN IT PERMITTED DETECTIVE MARK SCHMITT TO TESTIFY AND TO ADMIT INTO THE EVIDENCE EXHIBIT 10, WHICH WAS A COMPUTER PRINTOUT SHEET.
VI. THE COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE DEFENDANT A FAIR TRIAL BY REASON OF THE ADMISSION OF IMPROPER AND PREJUDICIAL EVIDENCE.

Defendant-appellant Sales additionally raises the following under his Seventh Assignment of error:

D) THE VERDICT OF THE JURY, AND JUDGMENT OF THE TRIAL COURT, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

The appellants join in raising Assignments VIII, IX and X as follows:

VIII. THE COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSES OF BURGLARY AND BREAKING AND ENTERING.
IX. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY CONCERNING THE EVIDENTIARY PRESUMPTIONS WITH RESPECT TO THE OFFENSE OF POSSESSION OF CRIMINAL TOOLS.
X. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY UPON A THEORY OF AIDING AND ABETTING WHICH WAS NOT ALLEGED IN ANY OF THE CHARGING PAPERS IN THIS CAUSE.

Appellant Robinson raises the following for his Eleventh Assignment of Error:

XI. THE COURT COMMITTED PREJUDICIAL ERROR IN IMPOSING THE SENTENCES FOR AGGRAVATED FELONIES AND ALSO FOR INDEFINITE SENTENCES.
A) THE COURT ERRED IN IMPOSING SENTENCE OF ACTUAL INCARCERATION FOR THE OFFENSE OF AGGRAVATED BURGLARY.
B) THE COURT ERRED IN SENTENCING THE DEFENDANT AS A FELONY FOR THE THEFT OFFENSE.
C) THE COURT ERRED IN SENTENCING THE DEFENDANT AS TO THE SECOND AND THIRD COUNTS OF THE INDICTMENT TO INDEFINITE TERMS OF IMPRISONMENT.

Appellant Sales asserts the following as his Eleventh Assignment:

XI. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS CERTAIN ALLEGED ORAL STATEMENTS OF MR. SALES GARNERED AS A RESULT OF THE ILLEGAL ARREST. DESPITE TIMELY AMD APPROPRIATE DISCOVERY REQUESTS, THE STATE DID NOT PROVIDE FULL INFORMATION CONCERNING THESE STATEMENTS UNTIL JUST BEFORE TRIAL.

The incident which gave rise to the indictment occurred the evening of November 23, 1983 in the area of Coventry and Derbyshire in Cleveland Heights. The two defendants were observed by a Cleveland Heights policeman, Officer Robertson, who was on patrol duty in the area. He testified that he observed two men walking on the sidewalk and then entering the driveway of the Zell residence on Derbyshire. At the halfway point on the drive they stopped and conversed, one of them pointed to the house. They then turned in the Officer's direction, turned away, walked across the side lawn, onto the sidewalk and away from the residence. (Tr. 129-30). As they crossed the side lawn, one of them threw something into the bushes. (Tr. 130).

Robertson testified that he approached them to see if they needed help. Sales came forward and told him they were there to purchase marijuana. He in turn questioned Robinson, who stated that they had had car trouble and were seeking assistance. Upon receiving their conflicting stories, Robertson requested assistance. (Tr. 139).

Upon the arrival of additional officers, a pat-down search for weapons was conducted, and a flashlight with a darkened lens was removed from the person of Robinson. (Tr. 140). The police recovered a green duffle bag from the bushes bearing Robinson's name. (Tr. 141-42). An automobile was located on Coventry, which a computer run reported as registered to a Deborah Sales (Tr. 144).

The defendants were placed under arrest, after a criminal trespass complaint was signed by Mr. Zell in the presence of a Sergeant Luskin, a deputy bailiff and police officer who had arrived on the scene. (Tr. 60, 63, 75-76, 82).

A neighbor testified that he had been given a key to the Fritz residence to keep an eye on the premises while the family was away. (Tr. 186). On November 24, 1984, he discovered that the house, which abutted the Zell property, had been broken into. (Tr. 186-87). He found a television, a radio and a pillowcase containing other items, outside the back porch. (Tr. 188-89). He also discovered a shoeprint on brown wrapping paper covering a rug on the Fritz back porch. (Tr. 192).

The investigating officer testified that no legible fingerprints were removed from the scene of the break-in (Tr. 242). He testified the shoeprint was sent to a forensic lab along with the defendants' shoes for comparison. (Tr. 244). He also testified to the following conversation with defendant Sales:

Q. Detective Schmitt, would you tell us what if anything the Defendant Mr. Sales said to you at that point.
A. There were questions by Mr. Sales directed to me as to why I took his shoes. I explained to him that we had recovered a shoe print from a house on Coventry that had been burglarized; that it was going to be for comparison purposes.
He replied to me, "So, you have my shoe print, so what?"
He further stated that, "Don't most good burglars wear something on their hands?"

On cross-examination, he further testified:

Q. This is the extent of your conversation except for your response was to the question by Mr. Gasper, that he responded, "So, you have my shoe print, so what?"
A. That is correct.

(Tr. 267).

He also testified that the purpose for darkening a flashlight lens is to diminish the amount of light cast. (Tr. 256).

An expert testified that the analysis of the shoeprint indicated that while defendant Sales' shoes were similar in size and general characteristics, there were no identifying characteristics to make a positive identification. (Tr. 310).

Fritz testified that when he had left his house, it was in excellent condition, but upon his return it had been broken into. He further testified that the items found outside amounted to $145 in value. (Tr. 321).

The defendants' Rule 29 motion at the close of the evidence was overruled. (Tr. 355).

James Sales was called by the defense to testify that he had lent his car to his brother Richard on the night in question. He also testified that the following day it was located in a parking lot at Cedar and Coventry with battery problems. (Tr. 360).

A defense witness, Wanda Ballantine, was called to testify that she had received two phone calls from Sales on November 23. In the first call, Sales made arrangements to come to her house in the evening. In the second call, received in the evening, Sales indicated to her he had battery problems with the car. The content of the phone calls was objected to and excluded by the trial court. (Tr. 382-84, 389).

In rebuttal, the State called Officer Schmitt who testified that the case records kept by the police on the incident contained a computer request on a license plate. A printout indicating that a computer request on a '72 Olds registered to a Patricia Sales had been made in connection with the incident, was admitted into evidence over objection. (Tr. 392).

I.

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL AND STATUTORY RIGHT TO A SPEEDY TRIAL AND THE
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