Opinion
No. 76201.
Decided December 14, 2000.
Criminal appeal from Common Pleas Court, Case No. CR 353397.
WILLIAM D. MASON, Cuyahoga County Prosecutor, ELEANORE E. HILOW, Assistant County Prosecutor, Cleveland, Ohio, for Plaintiff-Appellee.
JOHN P. PARKER, Cleveland, Ohio, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
Sheri Rigor separately appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding her guilty of one count of possession of twenty-six grams of crack cocaine and one count of possession of criminal tools, to wit: a pager and her 1992 Jeep Cherokee. Rigor urges on appeal that the court abused its discretion by denying her cross-examination of a witness and by imposing a fifteen thousand dollar fine. She also claims that her convictions are not supported by sufficient evidence and that the jury verdicts are against the manifest weight of the evidence. After careful review, we reject these contentions and affirm the judgment of the trial court.
The record reveals that around two o'clock on the morning of May 14, 1997, Cleveland Police Officers David Wilsman and Matthew Baeppler observed a 1992 red Jeep Cherokee operated by Robert Annotico run a stop sign at the corner of East 64th Street and Beaver Street in Cleveland, Ohio. They stopped the Jeep, and as they approached the vehicle, they noticed that Sheri Rigor, the back-seat passenger, made a furtive movement as if placing something in her pants. Officer Wilsman became concerned that Rigor had a weapon, so he called for assistance to come to the scene. Officer Terrence Potts arrived, removed Rigor from the Jeep, and ordered the other occupants, Annotico and Ronald James Loftis, out of the vehicle. While waiting for a female officer to arrive to conduct a search of Rigor's person to determine what she had stuffed in her pants, Rigor voluntarily removed a bag of crack cocaine from her pants. Officer Potts confiscated the drugs and arrested her, along with Annotico and Loftis.
Officer Wilsman then conducted an inventory search of the vehicle and discovered pagers, a crack pipe under the driver's seat, a broken crack pipe under the back seat, and a bag of crack cocaine in the glove box. He also attributed a statement to Rigor regarding her possession of the crack to the effect that, he gave it to me.
The grand jury subsequently indicted Rigor, Annotico, and Loftis for one count of possession of crack cocaine in excess of twenty-five grams but less than one hundred grams in violation of R.C. 2925.11, a first degree felony, and one count of possession of criminal tools, to wit, pagers, money, and a 1992 Jeep Cherokee, in violation of R.C. 2923.24, a fifth degree felony. Loftis then pled guilty to a third degree felony with a stipulation that he would receive a minimum sentence in exchange for his testimony against Rigor and Annotico.
The court tried Annotico and Rigor together. Loftis testified, denying ownership of the drugs. He testified that when Rigor and Annotico picked him up, they had the crack cocaine with them. During cross-examination, Loftis admitted that the state permitted him to plead guilty to a third degree felony instead of a first degree felony as charged in the indictment and that he agreed to testify against Loftis and Rigor. The court, however, sustained objections to questions posed to Loftis about the maximum penalty for a first degree felony, the charge for which he had been indicted.
The state also called Cynthia Dakota, a Scientific Examiner, who testified that the substance Officer Potts confiscated from Rigor tested positive for cocaine.
Finally, Officer Baeppler corroborated that Rigor made a sudden movement as the police approached the car; that the pager taken from Rigor had been going off during the arrest; and he confirmed Rigor's ownership of the Jeep. At the close of the state's case, Rigor's attorney moved for acquittal pursuant to Crim.R. 29, but the court denied that motion.
Rigor testified in her own defense. She stated that she and Annotico, her boyfriend, met Loftis in a bar on Dennison Avenue and the three decided to go to Loftis' house. When Loftis spotted the police, he threw the bag of crack cocaine he had into her lap and yelled at her to hide it in her privates. Further, she admitted ownership of the Jeep and explained that Loftis had given her the crack cocaine; she also testified that she gave it to the police, but she denied that either the crack cocaine or the crack pipes found in her vehicle belonged to her. At the close of her case, she moved for acquittal, but the court denied her motion.
Thereafter, the jury returned guilty verdicts against her on both counts. The court then imposed a fifty year prison term on counts one and two to run concurrently and a fifteen thousand dollar fine. Two days later the court entered a subsequent journal entry, which sentenced Rigor to concurrent terms of five years each on counts one and two and again, imposed the fifteen thousand dollar fine. However, twenty days later, the court journalized a third entry imposing concurrent sentences of five years on count one, and one year on count two but omitting the fifteen thousand dollar fine.
Rigor now appeals and raises five assignments of error for our review. The first assignment of error states:
I.
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING CROSS-EXAMINATION OF THE CO-DEFENDANT CONCERNING HIS PLEA BARGAIN IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
Rigor urges that the court abused its discretion by not permitting her defense counsel to fully cross-examine Loftis, thereby denying the jury an opportunity to assess his bias and credibility. The state asserts the court did permit cross-examination concerning Loftis' plea agreement, and only restricted questioning as to potential penalties for a first degree felony conviction. Thus, the issue here concerns whether the court properly limited cross-examination in this instance.
Evid.R. 611(B) states:
Cross-examination shall be permitted on all relevant matters and matters affecting credibility.
Evid.R. 611 must be balanced with Evid.R. 403(B) which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.
In State v. Lundgren (1995), 73 Ohio St.3d 474, the court stated:
* * * Lundgren argues the trial court unfairly restricted the cross-examination of his accomplices concerning the full benefits of their plea arrangements. In fact, the trial court allowed cross-examination * * * regarding their plea agreements, including questions about the offenses originally charged, the offenses to which each witness pled guilty, the conditions of the plea arrangements, and the maximum sentences to be recommended under the plea bargains. The trial court, however, did not allow counsel to * * * cross-examine the accomplices on speculative issues such as their possible probation or parole.
"The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge." * * * Here, we determine that no abuse of discretion occurred, since Lundgren had a full opportunity to demonstrate the bias or prejudice of each of these accomplices. * * *. (Citations omitted.)
In this case, the record reveals that on cross-examination Rigor's attorney asked Loftis the following:
Q. Now, you were indicted on a felony one, remember, on this case?
A. Yes.
Q. Okay. And that carries what, three to ten years, your lawyer told you?
MS. HILOW: Objection.
THE COURT: Sustained. He's not here to interpret the law.
Q. Do you know what the penalty is for a felony one?
MS. HILOW: Objection.
THE COURT: Sustained.
The court also permitted Loftis to testify about the degree of his involvement in the incident. Defense counsel, however, never specifically inquired as to motives for Loftis' plea. From his testimony, however, the jury knew that Loftis obtained a benefit by pleading to a lesser degree felony.
In State v. Aldridge (1981), 3 Ohio App.3d 74, our court considered a similar issue and stated:
Defendant's counsel was entitled to vigorously cross-examine the state's key witness on his pleas and the effect of it. This, counsel did. It was his duty to do so in order to expose any bias to the jury and give the defendant the best possible representation.
"Q. Now, when you told us that you had plead guilty to the indictment, that's not entirely true, is it?
"A. Yes.
"Q. You were given what we call a deal, weren't you?
"A. No, I wasn't given a deal.
"Q. Well, the original charge was aggravated robbery with a gun, was it not?
"A. Yes.
"Q. And you knew that that would be non-probationable, wouldn't you?
"A. I wouldn't call it a deal, though.
"Q. Do you or do you not know that an offense committed with a gun is non-probationable?
"A. Mandatory time.
"Q. You cannot get probation?
"A. Yeah, it's mandatory time.
"Q. The gun was taken out for you?
"A. Right.
"Q. So you were given a deal?
"A. It's not promised.
"Q. The deal was the possibility of getting probation?
"[THE PROSECUTOR] Objection.
"A. Yes, but it's not promised.
"THE COURT: The objection is overruled, except that the Court will explain to the jury at this time, it is not a deal as such. It is known as plea bargaining, and the Court will explain that later. But it has nothing at all to do with any inducement to the defendant to make any further statement, or give any further testimony.
"Q. If you had pled guilty to the offense with the gun, you would have gone straight to jail, wouldn't you?
"A. I presume so.
"* * *
"Q. And you are concerned that the authorities involved here go easy on you, aren't you?
"A. Yeah.
"Q. And in fact, that's why you say you made your statement — `I figure since I made a statement it would be easy on me,' isn't that right?
"A. Right.
"Q. And that's why you are testifying here today, also. You figure it will be easier on you if you testify, isn't that right?
"A. Right.
"* * *
"Q. Okay. By the way, it is this judge who will sentence you, isn't it?
"A. Yes.
"Q. And you would like to appear nice in front of his eyes, would you not?
"A. Yes.
"Q. Now, he hasn't promised you anything, has he, for the record?
"A. No.
"Q. And because he hasn't promised you anything, you want to appear to be cooperating with the authorities, isn't that correct?
"A. Yes."
In this case, the record shows that defense counsel ask Loftis about the degree of felony involved in his plea and about Loftis what his counsel had told him regarding penalty and whether he knew the penalty for a first degree felony; counsel, however, never pursued other aspects of the plea agreement.
Here, in denying the jury information about penalty, the court did not abuse its discretion because the record does not reveal that Loftis had personal knowledge of the penalties, nor is he qualified to testify about criminal penalties. Further, the form of the question posed to him is improper in that it allows for him to repeat what his lawyer told him. Notably, defense counsel did not pursue other avenues to highlight for the jury the nature of the plea agreement. Finally, in accordance with Ohio Jury Instructions, the subject of punishment is not a proper jury consideration. Accordingly, this assignment of error is overruled.
II.
THE COURT'S IMPOSITION OF FINANCIAL SANCTIONS MUST BE VACATED BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE APPELLANT'S PRESENT AND FUTURE ABILITY TO PAY THE SANCTION UNDER R.C. 2929.19(B)(6).
Rigor argues the court imposed an excessive fine, failed to comply with R.C. 2929.19(B)(6), and urges us to vacate it. The state maintains the court properly imposed the fine in this instance because Rigor failed to file an affidavit of indigency prior to sentencing. The issue here then concerns whether the court properly imposed a fifteen thousand dollar fine.
R.C. 2929.18(B)(1) states in part:
For a first * * * degree felony * * * of Chapter 2925 * * *, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense * * *. If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender. (Emphasis added.)
Further, in State v. Frazier (October 9, 1997), Cuyahoga App. No. 71675-78, unreported, we stated:
It is clear that the court should consider the impact a fine has on the offender, however, the court is required to consider such factors only if evidence is offered at the sentencing hearing. * * * Where the offender does not object at the sentencing hearing to the amount of the fine and does not request an opportunity to demonstrate to the court that he does not have the resources to pay the fine, he waives any objection to the fine on appeal. (Citations omitted.)
The record here reveals that Rigor failed to file an affidavit of indigency prior to sentencing, as required by R.C. 2929.18(B)(1) or that, at the time of sentencing, she objected to the amount or demonstrated that she lacked the resources to pay the fine. Thus, in accordance with Frazier, Rigor waived any objection to the fine on appeal. For these reasons, we reject this assignment of error.
III.
THE RECORD DOES NOT SUPPORT THE IMPOSITION OF MORE THAN THE MINIMUM SENTENCE FOR A FIRST OFFENDER IN VIOLATION OF OHIO LAW.
Rigor urges that the court failed to make the requisite findings pursuant to R.C. 2929.14(B)(1) to impose more than the minimum sentence. The state, however, maintains that the court made the necessary findings and correctly determined that a minimum sentence would demean the seriousness of these crimes. The issue here concerns whether the court properly supported a five-year term of imprisonment.
We begin by noting R.C. 2929.14(B) states in part:
* * * [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense * * *, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.
Further, in State v. Edmonson (1999), 86 Ohio St.3d 324, the court, referring to R.C. 2929.14(B), stated:
We construe this statute to mean that unless a court imposes the shortest term authorized on a felony offender who has never served a prison term, the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted the longer sentence.
R.C. 2929.14(B) does not require that the trial court give its reasons for its finding that the seriousness of the offender's conduct will be demeaned or that the public will not be adequately protected from future crimes before it can lawfully impose mor than the minimum authorized sentence. * * *. (Emphasis in the original.)
The record before us reveals that the court stated the following at Rigor's sentencing:
* * * Sheri, it would demean the seriousness of the offense for me to give you a minimum penalty.
Thus, we have concluded that the court complied with the dictates of the statute and Edmonson. Therefore, this assignment of error is overruled.
IV.
THE EVIDENCE IS INSUFFICIENT TO CONVICT THE APPELLANT.
V.
THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE.
Here, Rigor argues that her convictions are not supported by sufficient evidence and that they are against the manifest weight of the evidence, urging that the state failed to prove beyond a reasonable doubt that she voluntarily possessed crack cocaine or any criminal tools. The state maintains that the evidence proved beyond a reasonable doubt that Rigor possessed crack cocaine and criminal tools on May 14, 1997.
The issues then presented for review concern whether Rigor's convictions are supported by sufficient evidence and whether they are against the manifest weight of the evidence.
The test for sufficiency is enumerated in Crim.R. 29(A), which states in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.* * *.
The test for sufficiency raises a question of law to be decided by the court before the jury may receive and consider the claimed offense. In State v. Martin (1983), 20 Ohio App.3d 172, the court stated:
* * * [T]he test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. (Citations omitted.)
In this case, two indictments had been returned against Rigor. The first alleges Rigor violated R.C. 2925.11, knowingly possessing a controlled substance, to wit: crack cocaine, a Schedule II drug, in an amount greater than twenty-five grams but not exceeding one hundred grams.
The second alleges a violation of R.C. 2923.24 and states that Rigor possessed or had under her control a substance, device, instrument, or article, with purpose to use it criminally, to wit: pagers and a 1992 Jeep.
Regarding the evidence produced by the state in its case-in-chief for possession of crack cocaine, the record reveals Officer Potts testified that, at the time of her arrest, Rigor reached into her pants, removed a bag of crack cocaine, and voluntarily gave it to him.
Regarding possession of criminal tools, the evidence offered by the state reveals Officer Wilsman testified that he found pagers in the Jeep during his inventory search. Further, Officer Baeppler testified that he removed a pager from Rigor's person that had been going off, and he ran the license plates for the Jeep and learned that Rigor owned that vehicle.
Considering this state of the record, we have concluded that the trial court properly denied Rigor's motion for acquittal because the evidence presented permitted the trier of fact to find all of the essential elements of both crimes.
Only after the court resolves the question concerning the sufficiency of the evidence, can it proceed to question whether the judgment is against the manifest weight of the evidence. This involves a different test. In Martin, the court stated:
* * * [W]e next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * *. (Citations omitted.)
To properly consider this claim, we review the evidence offered by the defense to determine whether the convictions are against the manifest weight of the evidence. In this case, Rigor testified that although she had possession of the bag of crack cocaine, it belonged to Loftis. Further, she admitted that she owned the Jeep. After a review of the entire record, we are not persuaded that the trier of fact lost its way and created a manifest miscarriage of justice when it found her guilty of possession of crack cocaine and criminal tools. Accordingly, these assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES M. PORTER, J., CONCURS; ANNE L. KILBANE, J., DISSENTING IN PART AND CONCURRING IN PART (See Dissenting and Concurring Opinion attached)
On this appeal from a jury verdict resulting from a trial before Judge Bridget M. McCafferty, I respectfully dissent on assignments of error one, two, and three, and concur in judgment only with respect to assignments of error four and five. Furthermore, even if Rigor had been validly convicted, the sentencing proceedings were so deficient and marred with irregularity that this court should at the very least remand for resentencing.
My dissent here will raise many of the same issues surrounding the conviction and Judge McCafferty's sentencing of Rigor's co-defendant, Robert Annotico. See State v. Annotico (2000), Cuyahoga App. No. 76202, unreported. Therefore, parts of my opinion here will be verbatim repetitions of my dissent in Annotico.
As noted by the majority, Rigor and her co-defendant, Robert Annotico, were arrested after a traffic stop uncovered some 26 grams of crack cocaine. A joint indictment charged Rigor, Annotico, and a third defendant, Ronald Loftis, with possession of drugs, R.C. 2925.11, and possession of criminal tools, R.C. 2923.24. The possession count charged that the defendants possessed more than twenty-five grams but less than one hundred grams of crack cocaine, and the single count of possession of criminal tools charged that the defendants possessed pagers, money, and a 1992 Jeep, and such substance, device, instrument or article was intended for use in the commission of a felony, in violation of Section 2923.24 of the Ohio Revised Code. Loftis accepted a plea agreement and testified against Rigor and Annotico in their joint trial.
Rigor claims that it was error to prohibit her from cross-examining Loftis concerning his plea agreement; specifically the difference between the potential penalties for a first degree felony, for which all three had been indicted, and a third degree felony to which Loftis was permitted to plead. Loftis testified against his co-defendants after reaching a plea agreement to a third degree felony charge, with a stipulation that the State would recommend he receive the minimum sentence despite his criminal history. Rigor claims that it was important to show the jury that the minimum sentence for a third degree felony (one year) contrasted sharply with the sentence for a first degree felony (a mandatory minimum of three to ten years), in order to show the extent of Loftis' motivation to testify and thus his potential bias.
The majority first suggests that this issue is controlled by Evid.R. 403(B), which allows the discretionary exclusion of evidence if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. The majority then states that the judge did not abuse her discretion because the record does not reveal that Loftis had personal knowledge of the penalties, that he was not qualified to testify about penalties and would be testifying only to the information given to him by his lawyer. The next justification is that Rigor did not pursue other avenues to highlight for the jury the nature of the plea agreement. Finally, the majority adds a nonspecific reference to the Ohio Jury Instructions, stating that the subject of punishment is not a proper jury consideration. I will address these contentions seriatim.
The majority's reference to Evid.R. 403(B) must be mistaken; Rigor's proposed cross-examination raised no issue of undue delay or cumulative evidence, and the majority does not seek to support such an argument beyond the inexplicable citation. This rule cannot support exclusion of the questioning.
The majority next claims that the record does not show that Loftis had personal knowledge sufficient to answer the questions asked. This argument apparently is based on Rigor's failure to proffer Loftis' answers to the questions put to him on cross-examination. There is, however, no need to proffer testimony expected on cross-examination. Evid.R. 103(A)(2). The majority's personal knowledge contention is without merit, and cannot support exclusion of the questioning.
Similarly, no basis exists to exclude the questioning based on the majority's contention that Loftis was not qualified to testify to criminal penalties, or that he would only be repeating information given to him by his lawyer. Loftis' understanding of the penalties is in fact the most relevant factor bearing on the bias issue. He was the only witness qualified to testify to his understanding of the penalties, and the source of that understanding does not affect the admissibility of his testimony here. Lofts was not required or expected to give expert testimony concerning sentencing law. He was, however, certainly and uniquely able to address his own understanding of the penalties he faced. It is only through determining Loftis' understanding that we can understand the scope of his motivation to enter the plea agreement. This fact is finely exhibited in the majority's lengthy footnote quoting testimony in State v. Aldridge (1981), 3 Ohio App.3d 74, 76 n. 3, 443 N.E.2d 1026, 1028 n. 3. Certainly the defendant in Aldridge was testifying to his understanding of the potential penalties available for the charges against him, and was not offering expert legal testimony on the subject. The testimony the majority apparently approves from Aldridge is indistinguishable from that Rigor attempted to elicit from Loftis here.
The majority next apparently concludes that Rigor should have attacked Loftis' plea agreement through some other line of questioning, and upholds the judge's ruling because Rigor did not pursue these alternative methods. I can only surmise that this is some oblique reference to the full opportunity of cross-examination discussed in State v. Lundgren (1995), 73 Ohio St.3d 474, 487, 653 N.E.2d 304, 319, and represents a finding that Rigor had a full opportunity to cross-examine Loftis but failed to take advantage of it.
Although I am uncomfortable speculating on the majority's unstated arguments, I am forced to do so because I cannot otherwise make sense of the statements made or fashion a meaningful response.
I know of no case holding that error in excluding evidence can be excused because a party did not try hard enough to overcome it through other means, and I suspect that no such authority exists.
The majority opinion includes extensive quotes from both Lundgren and Aldridge, supra, apparently meant to support the conclusion that Rigor had a full opportunity to cross-examine Loftis concerning his bias, but failed to avail herself of all the methods at her disposal. Again, however, such a conclusion can only be accepted if one accepts the initial proposition that the erroneous exclusion of evidence can be excused by reference to supposed alternative methods of cross-examination and a party's failure to utilize those methods. The full opportunity discussed in Lundgren was made after a review of actual cross-examination made in the case, not speculation concerning the questions that might have been asked.
I note also that the majority's argument here leads inescapably to a conclusion that Rigor's attorneys rendered ineffective assistance of counsel.
It is one thing to note the record's absence of evidence necessary to prove a party's claim; it is quite another to speculate on modes of questioning that could have been employed to conclude that Rigor had a full opportunity to cross-examine Loftis. The majority's decision is not based on evidence in the record, or even on a finding that necessary evidence is missing, but on speculation concerning evidence that might have been in the record.
The majority's citation to Lundgren tells us nothing about whether the cross-examination at issue was admissible here. In Lundgren the defendant questioned witnesses about the offenses originally charged, the offenses to which each witness pleaded guilty, the conditions of the plea arrangements, and the maximum sentences to be recommended under the plea bargains. Id. at 487, 653 N.E.2d at 319. This description certainly does not exclude questioning comparing the charged offenses with the plea agreements, and appears to approve it. Indeed, the Lundgren court noted only that the trial judge did not allow counsel to mischaracterize the plea agreements or cross-examine the accomplices on speculative issues such as their possible probation or parole. Id. Loftis' understanding of the penalty he faced prior to his plea agreement is not a speculative issue, nor was the mandatory sentence.
The Lundgren court also concluded that any error in limiting cross-examination in that case was harmless in view of the overwhelming evidence demonstrating Lundgren's guilt. Id. No such alternative is available here, as Rigor's guilt was highly dependent upon the jury's assessment of Loftis' credibility. Because Lundgren does not tell us whether the excluded questioning denied Rigor a full opportunity to cross-examine Loftis, we must turn to other precedent.
In Aldridge, supra, at paragraph two of the syllabus, this court held the following:
It is reversible error to deny the defense cross-examination of a state witness with respect to what the witness hopes to gain from a plea, whether in the same or an unrelated case. Such examination is a legitimate method of exposing potential bias. (Emphasis added).
Similarly, in State v. Simms (1983), 9 Ohio App.3d 302, 303-04, 459 N.E.2d 1316, 1319, the court stated that:
The purpose for inquiry into a plea bargaining arrangement with a witness is to show possible bias on the part of the witness that might affect the witness' credibility. The important consideration is what the witness knew about the benefits of the plea bargain as opposed to standing trial on the original charge that might induce testimony that is untruthful. * * * In this respect, the trial court permitted cross-examination as to what the witness knew about the original charge and the penalties that might be accorded as opposed to the punishment imposed after she pled guilty to the lesser charges. (Emphasis added.)
This is exactly what Rigor attempted to accomplish in cross-examining Loftis concerning the difference between the penalties he faced and the plea agreement he reached with the prosecutor. Nothing in the majority opinion adequately explains why the exclusion of this questioning was justified.
The majority's last contention also is without merit. Its reference to the Ohio Jury Instructions apparently is directed toward 4 Ohio Jury Instructions (2000) 100, Section 413.60, which suggests the judge inform the jury that:
1. PUNISHMENT. You may not discuss or consider the subject of punishment. Your duty is confined to the determination of the guilt or innocence of the defendant * * *. In the event you find the defendant guilty, the duty to determine the punishment is placed, by law, upon the court.
I agree that this instruction correctly states the law, and should be given in all criminal cases, but it is utterly irrelevant to the question here. Reminding the jury that it should not consider the defendant's punishment has nothing to do with its determination of a witness's bias. The only possible relevance the majority's reference can have is if one argues that admission of this cross-examination also would inform the jury of the potential prison sentences Rigor would face if convicted. The issue in that instance is whether the testimony's probative value was substantially outweighed by the danger of unfair prejudice under Evid.R. 403(A). The majority has not expressed this contention, and the judge did not address the issue in making her ruling. I will nonetheless address the issue, because I find it the only logical argument in favor of excluding the questioning here.
I agree that to inform the jury of the penalty Rigor faced would be improper if presented for no other purpose. However, in this case the evidence had a legitimate purpose which had to be weighed against its danger of causing unfair prejudice to the State before it could be excluded. Not only do I dissent from the majority's attempts to justify the ruling, the record indicates the judge excluded the evidence without weighing its probative value against its potential for prejudice, and without considering limiting instructions or admonishments to the jury to mitigate any potential harm.
I find the majority opinion illustrative of inconsistent attitudes toward juries; on one hand juries are able to disregard all manner of prosecutorial misconduct if instructed to do so by a judge, while on the other hand they will incapable of following a judge's instructions once informed of the penalty for a charged offense.
Furthermore, even if the majority attempted to justify its decision under Evid.R. 403(A), Loftis' credibility was an important factor in determining Rigor's guilt, and the judge should have required a strong showing of unfair prejudice before excluding otherwise relevant questioning. No such showing was made, as there was no showing even that the jury would reach the prejudicial conclusion, or that the prejudice was so great that it could not follow a limiting instruction. I would find that the judge abused her discretion in sustaining the objections during Loftis' cross-examination.
In her second and third assignments of error Rigor attacks her sentence, claiming both that the length of her prison term and the amount of her fine were inappropriate. At the sentencing hearing on February 19, 1999, the judge announced Rigor's sentence as follows:
You have shown up today and shown remorse so I am not going to sentence you consecutively. In other words, I will impose one sentence for both counts the jury found you guilty of today. That sentence will be for a period of five years in Marysville and you will have to pay a $15,000 fine.
The judge then produced three separate journal entries mentioned by the majority purporting to record this sentence; the first, entered February 24, 1999, sentenced Rigor to concurrent sentences of fifty years for the first degree felony conviction, fifty years for the fifth degree felony conviction, and ordered a $15,000 fine, which was not specifically attached to the conviction for either count. She then created a second journal entry, filed February 26, 1999, which reduced the prison terms to concurrent five years terms, and retained the nonspecific $15,000 fine. A letter from the Record Clerk of the Marysville prison to the judge advised that Rigor had arrived on March 3, 1999, that the prison term for the fifth degree felony cannot be more than twelve months so that sentence was contrary to law, and requested the judge to provide necessary and proper commitment papers. Finally, through a journal entry on March 18, 1999, the judge purported to re-sentence Rigor to concurrent terms of five years for the first degree felony and one year for the fifth degree felony but omitted any imposition of a fine.
Rigor was subject to a mandatory fine of $10,000 to $20,000 on the first degree felony conviction, and a discretionary fine of up to $2,500 on the fifth degree felony conviction.
The majority simply ignores the errors in journalizing Rigor's sentence, and instead purports to affirm a sentence that has never been journalized. Moreover, the majority ignores numerous other errors that invalidate whatever sentence it believes was imposed.
Because a court speaks through its journal entries, a sentence is not imposed until journalized. State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 599, 589 N.E.2d 1324, 1326; State v. Scovil (1998), 127 Ohio App.3d 505, 510, 713 N.E.2d 452, 456. A defendant can appeal a journal entry that is inconsistent with the sentence imposed at a hearing, because a judge is without power to journalize an order of sentence that was not imposed at a hearing in the presence of the defendant. State v. Bell (1990), 70 Ohio App.3d 765, 773, 592 N.E.2d 848, 853. If the majority intends to affirm any sentence, however, the only viable sentence imposed was that recorded in the third journal entry, which omitted the $15,000 fine.
Where there is an inconsistency between the journal entry and the judge's remarks at sentencing, the journal entry controls. Scovil, supra. The first two journal entries clearly imposed illegal sentences and were void. State v. Calvillo (1991), 76 Ohio App.3d 714, 717, 603 N.E.2d 325, 327. Therefore the only journal entry that can possibly have effect is the third, which imposes no fine. If a sentence has been imposed in this case, it does not include a fine.
Moreover, at the sentencing hearing the judge purported to impose a single, undifferentiated five-year prison term and $15,000 fine as punishment for both offenses. Even if she intended to impose concurrent sentences, this does not eliminate her duty to impose separate sentences for each offense. R.C. 2929.14; R.C. 2929.19. Because the judge did not impose a lawful sentence at Rigor's hearing or properly record or correct that sentence, the only just solution is to vacate this debacle of a sentence and remand the case for resentencing.
The majority also purports to affirm the $15,000 fine by claiming that Rigor waived error on the issue when she failed to file an affidavit of indigency, object to the fine or present evidence that she lacked the resources to pay the fine. Putting aside the reversible errors already apparent (no lawful journal entry records the sentence or fine, the offense(s) for which the fine is/are imposed is not specified), I would vacate the fine for other reasons as well.
I question the majority's reliance on State v. Frazier (Oct. 9, 1997), Cuyahoga App. No. 71675, unreported, as the majority's author disagreed about the viability of Frazier as recently as last year. See State v. Mullins (Nov. 4, 1999), Cuyahoga App. No. 74861, unreported (O'Donnell, J. concurring and dissenting). Although the majority can be seen as deferring to a prior decision of this court, this was exactly the tone of Judge O'Donnell's dissent in Mullins, as he noted that the original Frazier decision failed to follow this court's prior resolution of the issue. In fact, controlling authority in this court conflicts with Frazier, and finds that it is improper to impose a fine on an indigent regardless of whether an affidavit has been filed. State v. Jackson (1985), 21 Ohio App.3d 157, 159, 487 N.E.2d 585, 587.
Rigor was subject to a maximum fine of $20,000 for the first degree felony conviction, and up to $2,500 for the fifth degree felony conviction. R.C. 2929.18(A)(3)(a) and (e). The first degree felony conviction subjected her to a mandatory fine of at least $10,000, subject to the following exception:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender. R.C. 2929.18(B)(1).
R.C. 2929.18(E) then provides:
A court that imposes a financial sanction upon an offender may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it.
With respect to the sentencing hearing, R.C. 2929.19(B)(6) provides:
Before imposing a financial sanction under section 2929.18 of the Revised Code, the court shall consider the offender's ability to pay * * *.
Taken together, the statutes first mandate consideration of ability to pay even when an affidavit of indigency is not timely filed; this is accomplished by granting the judge discretion to hold a hearing if necessary to determine that ability. While an offender may be required to file an affidavit of indigency before a judge can waive imposition of a mandatory fine, the other sections require the judge to determine ability to pay regardless of whether the affidavit is filed. Furthermore, the duty under R.C. 2929.19(B)(6) suggests that it would be an abuse of discretion to determine an offender was unable to pay but refuse to delay sentencing until an affidavit was filed. Cf. State v. Gipson (1998), 80 Ohio St.3d 626, 687 N.E.2d 750 (finding no abuse of discretion in denying filing of affidavit where judge expressly considered the offender's ability to pay before imposing fine).
The majority, citing Frazier, supra, finds that a judge need not inquire into an offender's ability to pay if he does not raise the issue himself. This conclusion is based on the proposition that although a judge has a duty to consider ability to pay, a reviewing court can presume compliance with this duty if faced with a silent record. State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus. Where, however, the record shows that no evidence was available to inform the judge about certain issues, this court has held that the Adams presumption is rebutted, because the lack of information shows a lack of consideration. State v. Ziko (1991), 71 Ohio App.3d 832, 838, 595 N.E.2d 1019, 1023. Moreover, the enactment of Senate Bill 2" (Am.Sub.S.B. No. 2) trumps any presumption of compliance or regularity at a sentencing hearing. State v. Ayala (Dec. 16, 1999), Cuyahoga App. No. 75207, unreported.
The record reveals Rigor's lawyer stated after the alleged sentencing that he would be filing a motion on that but did not explain what the motion would be directed to and apparently did nothing. The judge did not give Rigor or her lawyer any opportunity to articulate any objections on either the term of incarceration or the fine. In this case the only evidence in the record indicates Rigor's inability to pay any fine imposed.
The judge had previously found Rigor to be indigent and appointed her a lawyer for trial. Immediately after imposing sentence, she questioned Rigor concerning her ability to pay an appellate lawyer; Rigor replied that she could not and the judge stated that she would appoint appellate counsel, and order transcripts at state expense for purposes of Rigor's appeal. Although the Frazier court ruled that a finding of indigence for purposes of appointing counsel does not necessarily indicate the inability to pay a fine, this ruling conflicts with numerous decisions of this court ruling that a finding of indigence for appointment of counsel is relevant to determining the ability to pay a fine, and that it is an abuse of discretion to impose a fine upon an offender who has been sentenced to prison and has been found indigent for purposes of appointment of counsel. Jackson, supra; State v. Davis (May 24, 1984), Cuyahoga App. No. 47622, unreported; State v. Copen (Dec. 21, 1981), Cuyahoga App. No. 43227, unreported; State v. Houston (Jan. 17, 1980), Cuyahoga App. No. 40124, unreported.
The pre-sentence investigation report, which the judge claimed to have reviewed prior to sentencing, revealed that Rigor had no financial assets, significant debts, and very modest income as a cosmetologist. Furthermore, the imposition of a prison sentence restricted Rigor's future ability to pay the fine, especially as the length of her prison term is at this point unknown. I would find the imposition of this fine, or fines as we have no idea for what specific charge it was levied, to be an abuse of discretion.
One should note, if one should find a waiver of objection to this fine(s), it was an error by Rigor's lawyer because he must have been aware of the imposition of a fine as part of the sentence and ought to have filed an affidavit of indigency before sentencing. Such error could be a basis for a timely petition for postconviction relief, or a basis to move this court to re-open her direct appeal, claiming ineffective assistance of appellate counsel. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. However, both alternatives are unlikely sources of relief; the first because Rigor failed to raise the issue of ineffective assistance in this appeal, and the second because of courts' general reluctance to recognize ineffective assistance as anything but failed strategy. In short, the denial of Rigor's claim here practically defeats any opportunity she has to challenge the fine, even though the penalty is imposed because her lawyer failed to represent her adequately. The doctrine of plain error must be employed to prevent this injustice and protect public confidence in the integrity of the judicial system. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; State v. Loines (1984), 20 Ohio App.3d 69, 71,-72, 484 N.E.2d 727, 731.
Even if one were to disregard the above arguments, the fine imposed is not supported by the record and must be vacated pursuant to R.C. 2953.08(G)(1)(a). Rigor was subject to a possible fine of up to $20,000 for the first degree felony conviction, and another $2,500 fine for the fifth degree felony conviction. Even if the failure to submit an affidavit of indigency properly subjected Rigor to this fine, the mandatory amount was only $10,000. Under any analysis, any fine above this amount was discretionary and one can only conclude from this record that the judge failed to consider Rigor's ability to pay before imposing the $15,000 fine. The Frazier rationale concerning the affidavit of indigency would not apply to a discretionary fine.
I also agree with Rigor that the judge failed to make adequate findings prior to sentencing her. The majority concedes that Rigor was entitled to the minimum prison term unless the judge found on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. R.C. 2929.14(B). In apparent compliance with the statute, Rigor was told at the hearing that it would demean the seriousness of the offense for me to give you a minimum penalty. The majority finds this statement sufficient to justify Rigor's five-year sentence for the first degree felony conviction, relying on State v. Edmonson (1999), 86 Ohio St.3d 324, 715 N.E.2d 131, for the proposition that a judge need not state reasons, but only the finding, before imposing more than the minimum sentence on one who has never before been sentenced to prison. However, Edmonson requires more than a statutory recitation to uphold a judge's finding. The judge that makes findings must note that it engaged in the analysis set forth in the applicable statute. Id. at 326, 715 N.E.2d at 134. The record indicates no such thing, but instead shows that the judge was originally prepared to impose consecutive sentences on Rigor but did not in view of Rigor's showing of remorse at sentencing. On this record it appears the judge did not depart from the minimum based on the evidence at hand, but instead considered imposing an even greater sentence on Rigor before departing downward. Instead of beginning the analysis by presuming the minimum sentence was applicable, the judge presumed that greater penalties were required. This does not show the analysis Edmonson requires.
Although I concur in the majority's judgment on the fourth and fifth assignments of error, I write only to note an issue not discussed in Rigor's Brief. She was indicted on a single count of possession of criminal tools, R.C. 2923.24. The indictment alleged that she possessed money, pagers, and an automobile; the jury was instructed that if it found that Rigor possessed any one of these items with a criminal purpose, it could convict Rigor of the offense. It appears that courts of this district have found no difficulty in approving such indictments, nor, apparently, have courts required the removal of items from jury instructions when there is no sufficient evidence to convict. In this case the jury was instructed that it could convict Rigor on the criminal tools charge for possessing any of the items. After her conviction, Rigor stipulated to the forfeiture of the vehicle and the pager.
It is disheartening that these practices are considered so far beyond controversy that a defendant would acquiesce to them, much less stipulate to their correctness. There are conflicting opinions concerning whether money and pagers can be considered criminal tools when the crime involved is possession and there is no evidence of drug transactions. See State v. McShan (1991), 77 Ohio App.3d 781, 603 N.E.2d 1076 (majority finding sufficient evidence to find pager was criminal tool; Harper, J., dissenting); See, also, United States v. One 1990 Ford Ranger Truck (N.D.Ga. 1995), 876 F. Supp. 1283 (discussing approaches to determining propriety of civil forfeiture) In this case there was no evidence linking the money or the pagers to the possession offense, and no suggestion or instruction that either item met the test for prima facie proof under R.C. 2923.24(B). Furthermore, I certainly would question those authorities finding that the mere possession or use of drugs while in a vehicle renders the vehicle a criminal tool. rather than to address criminal behavior. Rigor's clothes, in which she hid the bag of drugs, arguably were criminal tools under the same theory that rendered the vehicle a criminal tool, but were not charged as such and forfeiture of them was not sought.
I note that State v. McDonald (1987), 31 Ohio St.3d 47, 509 N.E.2d 57, did not fully address the use of presumptions when deciding the facial constitutionality of R.C. 2923.24. The McDonald court ironically found that the mens rea requirement of purpose helped save the statute from vagueness and overbreadth challenges, yet failed to address the fact that the statutory presumptions eviscerate the requirement.
Finally, even though courts apparently have approved the use of single-count indictments charging several items as alternatively constituting the criminal tool, I am not comfortable allowing a conviction to stand when the jury could have convicted on a theory unsupported by the evidence. Because it is imperative that the jury link the possession of a particular article with an appropriate mens rea for that article, I would hold that this case presents distinct conceptual groupings requiring jury instructions that explain the need for jury unanimity in specifying which item or items constituted criminal tools. State v. Johnson (1989), 46 Ohio St.3d 96, 104-05, 545 N.E.2d 636, 644; see, also, United States v. Duncan(C.A.6, 1988), 850 F.2d 1104, 1111. We would thus avoid the danger that the jury convicted on a theory that was not supported by sufficient evidence, and future offenders need not acquiesce to the forfeiture of property when the jury has determined it was not used for a criminal purpose.
I would reverse Rigor's conviction or, in the alternative, vacate her sentence in its entirety and remand for resentencing.