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State v. Ginley

Court of Appeals of Ohio, Eighth District, Cuyahoga
Jul 18, 2024
2024 Ohio 3294 (Ohio Ct. App. 2024)

Opinion

112641

07-18-2024

STATE OF OHIO, Plaintiff-Appellee, v. DANIEL GINLEY, Defendant-Appellant.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Rachel E. Cohen and Frank Zeleznikar, Assistant Prosecuting Attorneys, for appellee. Joseph V. Pagano, for appellant.


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-663242-A

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Rachel E. Cohen and Frank Zeleznikar, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN A GALLAGHER, P.J.

{¶ 1} Defendant-appellant, Daniel Ginley, appeals convictions for aggravated robbery, having weapons while under disability and receiving stolen property after a jury trial. For the reasons that follow, we affirm.

I. Factual Background and Procedural History

{¶ 2} On October 4, 2021, a Cuyahoga County Grand Jury returned a ten-count indictment charging Ginley with the following offenses:

Alleged Robbery of Domino's Pizza on September 3, 2021
• Count 1: aggravated robbery in violation of R.C. 2911.01(A)(1).
• Count 2: robbery in violation of R.C. 2911.02(A)(2).
Alleged Robbery of Pizza Hut on September 6, 2021
• Count 3: aggravated robbery in violation of R.C. 2911.01(A)(1).
• Count 4: robbery in violation of R.C. 2911.02(A)(2).
Alleged Robbery of Burger King on September 6, 2021
• Count 5: aggravated robbery in violation of R.C. 2911.01(A)(1).
• Count 6: robbery in violation of R.C. 2911.02(A)(2).
Alleged Robbery of John Doe on September 6, 2021
• Count 7: aggravated robbery in violation of R.C. 2911.01(A)(1).
• Count 8: robbery in violation of R.C. 2911.02(A)(2).
Offenses Related to the Alleged Firearm
• Count 9: having weapons while under disability in violation of R.C. 2923.13(A)(2).
• Count 10: receiving stolen property (a Smith & Wesson handgun) in violation of R.C. 2913.51(A).

{¶ 3} Counts 1 through 8 carried one- and three-year firearm specifications (R.C. 2941.141(A) and 2941.145(A)), notices of prior convictions (R.C. 2929.13(F)(6)) and repeat-violent-offender specifications (R.C. 2941.149(A)).

{¶ 4} The State's theory of the case was that Ginley robbed three fast-food restaurants and one additional unknown victim, at gunpoint, between September 3, 2021 and September 6, 2021. The defense did not deny that Ginley robbed each of the stores with a firearm but it urged the jury to acquit him of the aggravated-robbery counts and the receiving-stolen-property count, arguing that the gun was not loaded with live ammunition during the robberies and that there was insufficient evidence that the gun had been stolen.

{¶ 5} The case came for trial on March 6, 2023. Ginley elected to have the trial court serve as factfinder on the having-weapons-while-under-disability count (Count 9) and on the repeat-violent-offender specifications and notices of prior convictions attached to Counts 1 through 6.

{¶ 6} The parties stipulated that Ginley was previously convicted of aggravated robbery in 1988. They further stipulated that a Smith & Wesson .38-caliber revolver recovered near West 98th Street (as discussed further below) was tested and found to be operable.

{¶ 7} The State presented ten witnesses in its case-in-chief.

A. The Examination of Anthony Leiser

{¶ 8} Anthony Leiser testified that he is employed as a police officer with the Cleveland Police Department. On September 3, 2021, Leiser responded to a Domino's Pizza in Cleveland after employees reported a robbery. The employees reported that a white male wearing a medical mask and carrying a gun stole between $50 and $60.

B. The Examination of Alexander Zangara

{¶ 9} Alexander Zangara testified that in 2021 he was employed at a Domino's Pizza restaurant in Cleveland. One day while he was working, a man entered the restaurant and pointed a gun at the employee working the cash register, demanding money. Zangara, who was nearby, put his hands up and walked toward the register to intervene. The man with the gun looked at him and said, "I won't hesitate to blow your brains all over this place." The employee working the register - Chanel Crawford - handed the man money from the cash register and the man ran away. Zangara estimated that the man stole ten or eleven dollars. The man was wearing a medical mask. Zangara identified Ginley in the courtroom as the man who robbed the restaurant.

{¶ 10} The State played surveillance video from the restaurant and introduced still photographs from those videos. The robber, who appeared to be a white male, wore a blue t-shirt, a black winter hat and a medical mask. He had a distinctive tattoo of a human head or skull on the inside of his left arm, just below the elbow. The robber held a silver revolver with a wooden handle in his right hand and pointed the barrel toward the employee behind the register. His finger was on the trigger.

C. The Examination of Chanel Crawford

{¶ 11} Chanel Crawford testified that she is employed at a Domino's Pizza restaurant in Cleveland. One night when she was working, a man entered the restaurant, pulled out a gun and "told me to give him whatever I had." The man was wearing a mask such that "[y]ou could just see his eyes." She described him as an "older, shorter, white man." Crawford opened the register and gave him all the cash inside it; she estimated she gave him $100 or $200. He then left the restaurant and the employees called the police.

D. The Examination of Nora Ibrahim

{¶ 12} Nora Ibrahim testified that she used to be employed as a manager at a Burger King restaurant in Cleveland. On September 6, 2021, at approximately 6:30 p.m., Ibrahim was working the front cash register. A person entered the store and told Ibrahim "that he had a gun, and he wanted the money out of my register"; he threatened to kill Ibrahim. He lifted his shirt to reveal a gun in the waistband of his pants. Ibrahim declined to give him money, at which point the man put the gun on the countertop. Ibrahim again declined to give him money and he took the gun and left the store. Ibrahim then called 9-1-1.

{¶ 13} Ibrahim identified Ginley in the courtroom as the person who attempted to rob her. The State played surveillance video from the restaurant that captured the robbery. The video recorded a white man wearing a neon green-yellow shirt, a medical mask and dark-colored shoes with light-colored soles approach the counter and speak with Ibrahim. The man was slightly balding. During the conversation, the man gestured to his waistband and then lifted his shirt and pulled a silver revolver from his waistband using his right hand. He placed the firearm on the countertop and placed his left hand over the top of it, concealing it from the view of others in the restaurant. The man had a tattoo on his left arm, just below the elbow. While only a portion of the tattoo was clearly visible on the surveillance video, it appeared to be consistent with the tattoo on the person who robbed the Domino's Pizza. As the employee walked away from the register toward other employees, the man exited the restaurant with the firearm.

{¶ 14} On cross-examination, Ibrahim admitted that the person who robbed her was wearing a mask that covered his nose and mouth.

E. The Examination of Jennifer Bachman

{¶ 15} Jennifer Bachman testified that she is employed as a police officer with the Cleveland Police Department. On September 6, 2021, Bachman was dispatched to a Pizza Hut to respond to a reported robbery.

F. The Examination of James Bellomy, Jr.

{¶ 16} James Bellomy, Jr., testified that he is employed as a police officer with the Cleveland Police Department. On September 6, 2021, Bellomy and another officer responded to West 98th Street for a call of "shots fired." The officers reviewed surveillance footage from a store and learned that there had been a shooting outside the store. From the video recording, officers developed a suspect - a white male who appeared to be between 35 and 40 years old and who was "slightly balding."

{¶ 17} Outside the store, police found spent cartridge cases and a "blood trail," which led to an alley. Officers followed the trail and found a "neon green shirt" and a firearm next to the blood trail, but they did not find a victim. The firearm was a Smith & Wesson .38-caliber revolver.

{¶ 18} Detectives responded to the scene, followed by crime-scene investigators who took photographs and collected evidence.

G. The Examination of Kenneth Zverina

{¶ 19} Kenneth Zverina testified that he is employed as a detective with the Cleveland Police Department. On September 6, 2021, he called the owner of a blue GMC vehicle that police suspected was involved in the robberies. After the call, Zverina asked the dispatch center to send emergency medical personnel to the house. Police officers were also sent to the house.

H. The Examination of Katherine Reddy

{¶ 20} Katherine Reddy testified that she is employed as a detective with the Cleveland Police Department. On September 6, 2021, Reddy and another detective - James Houska - responded to a Burger King after employees reported a robbery. Police officers at the scene provided a suspect description and the detectives reviewed surveillance video.

{¶ 21} While the detectives were at Burger King, a call came over the radio regarding a robbery at a Pizza Hut located "a few miles" from the Burger King. Reddy and Houska responded to the Pizza Hut and then returned to the police station to review footage from city pole-mounted cameras.

{¶ 22} Later that night, there was another robbery reported on West 98th Street in Cleveland. Reddy responded to that scene, where uniformed officers directed her to a "trail of blood." They followed the trail into a "back alley" but did not locate a victim. Detective Kenneth Zverina then called over the radio to report that the owner of a suspect vehicle said that "[a] male was shot at her residence." The male was later identified as Ginley.

I. The Examination of Walter Emerick

{¶ 23} Walter Emerick testified that he is employed as a detective with the Cleveland Police Department, where he works as a crime-scene investigator. He responded to the West 98th Street crime scene on September 6, 2021, where he took photographs and collected evidence. He also responded to the scene of Ginley's arrest, where he observed a blood trail leading from a blue GMC vehicle into the residence where Ginley was arrested. At that scene, Emerick took more photographs and collected items of evidence.

{¶ 24} The photographs from the scene of Ginley's arrest document a blood trail leading from the blue GMC vehicle into a residence. Next to the blood trail are dark-colored shoes with light soles, consistent with the shoes worn by the robber in the Burger King surveillance video.

J. The Examination of James Houska

{¶ 25} James Houska testified that he is employed as a detective with the Cleveland Police Department. On September 6, 2021, Houska responded to the Burger King in response to the reported robbery. He reviewed surveillance video and noted that the suspect was a white male wearing a "neon greenish yellow" shirt, black jeans and black-and-white shoes. While the detectives were at that scene, another report came in regarding a robbery at a nearby Pizza Hut. Houska responded to the Pizza Hut and learned that the description of the suspect in that robbery matched the suspect from the Burger King robbery.

{¶ 26} Houska then returned to the police station to review city pole-camera footage. The cameras recorded the suspect leaving the Pizza Hut and removing his neon yellow shirt. Underneath the neon yellow shirt, the suspect was wearing a white tank top. The suspect walked down a street and then cameras captured a blue GMC vehicle leave that area. Detectives obtained vehicle information by looking up the license plate of the vehicle, learning that it was registered to a woman. Cameras captured a view of the driver - a white male wearing a tank top. On the passenger seat was a neon yellow shirt.

{¶ 27} While detectives were reviewing the camera footage, another call came in regarding a shooting on West 98th Street. Detectives arrived and located a shirt matching the neon shirt seen in the surveillance and pole-camera videos; the shirt was lying next to a blood trail. Police also located a firearm - a silver revolver with a brown handle. Inside the cylinder of the revolver were six spent cartridge cases.

{¶ 28} Police received information that the suspect in the robberies might be at the home of the owner of the blue GMC vehicle police suspected was connected to the robberies; Ginley was located at the home and taken into custody. Houska interviewed Ginley at the Cuyahoga County Corrections Center on September 9, 2021. The State played a video recording of the interview.

{¶ 29} The video reflects that Ginley is slightly balding and has a distinctive tattoo on his left arm, just below the elbow - a human head or skull, consistent with the tattoo worn by the robber in the surveillance footage from Domino's Pizza and Burger King. During the interview, Ginley admitted that on September 6 he "definitely tried to attempt some robberies" but said that "none of them went through." He admitted that it was "definitely me."

{¶ 30} Ginley was asked if he recalled a robbery at Burger King, to which he responded, "I sure do." He said that the employees would not give him any money, so he left. He said that he believed he was armed during the robbery, but he could not recall the weapon he used. He could not remember where he went next but he was confident he "went somewhere else." When asked if he recalled robbing a Pizza Hut, Ginley nodded and said, "It could have been that one." When asked if he attempted another robbery ten or fifteen minutes after the Burger King attempt, Ginley responded, "Sure." Ginley claimed that the employees at Pizza Hut also declined to give him any money, so he left.

{¶ 31} Ginley denied attempting to rob a person outside a store on West 98th Street but refused to provide any other information about that shooting. When asked what happened with the weapon Ginley was carrying, Ginley claimed that he did not know.

{¶ 32} On cross-examination, Houska admitted that the cartridge cases found at the West 98th Street crime scene appeared too large to have been fired from the .38-caliber revolver that was found at the scene. The revolver contained six cartridge cases, indicating that the gun had been fired at least six times but there was no indication that the revolver had been fired that night. While the firearm was dusted for fingerprints, no fingerprint identification had been made in the case. Moreover, the cartridge cases were not submitted for DNA testing. No witnesses specifically identified the revolver as the weapon used in a robbery. Houska had no knowledge as to whether the blood at the West 98th Street scene was tested and confirmed to be from a human, as opposed to an animal.

{¶ 33} On redirect, Houska testified that a database search revealed that the revolver had been reported stolen in Tennessee in 1980. On recross-examination, Houska admitted that Ginley was not connected to the gun through DNA or fingerprint testing.

K. The Motion for Judgment of Acquittal

{¶ 34} The State rested its case after Emerick's testimony, offering its exhibits into evidence with no objection from the defense.

{¶ 35} Ginley then moved for a judgment of acquittal pursuant to Crim.R. 29. The trial court granted the motion as to Counts 7 and 8 (the alleged robbery of John Doe) and denied it as to the remaining counts and specifications.

{¶ 36} The defense rested without presenting evidence. The defense renewed its Crim.R. 29 motion and the court denied the renewed motion.

L. The Verdict

{¶ 37} On March 8, 2023, the jury returned its verdict. It found Ginley guilty on Counts 1 through 6 and Count 10. It also found him guilty on the firearm specifications attached to Counts 1, 2, 5 and 6.

{¶ 38} The jury acquitted Ginley on the firearm specifications attached to Counts 3 and 4.

{¶ 39} The trial court found Ginley guilty on Count 9. It further found him guilty of the repeat-violent-offender specifications and notices of prior convictions attached to Counts 1 through 6.

M. The Sentence

{¶ 40} The trial court held a sentencing hearing on March 21, 2023. The State addressed the court and conveyed several victim-impact statements to the court. Defense counsel also addressed the court. Ginley declined to speak on his own behalf.

{¶ 41} The court merged Counts 1 and 2. It merged Counts 3 and 4. And it merged Counts 5 and 6. The State elected to proceed to sentencing on the aggravated-robbery offenses.

{¶ 42} As to Count 1, Ginley was sentenced to three years in prison on the firearm specification prior and consecutive to six years in prison on the underlying felony.

{¶ 43} As to Count 3, Ginley was sentenced to six years in prison.

{¶ 44} As to Count 5, Ginley was sentenced to three years in prison on the firearm specification prior and consecutive to six years in prison on the underlying felony.

{¶ 45} As to Count 7, Ginley was sentenced to 18 months in prison.

{¶ 46} As to Count 8, Ginley was sentenced to three years in prison.

{¶ 47} The court ran the two firearm specifications consecutive to each other and consecutive to the sentences imposed on the underlying felonies, for an aggregate minimum sentence of 12 years in prison.

{¶ 48} The court then announced the following:

As to Count 1, the aggravated robbery, felony of the first degree, again you are subject to the Reagan Tokes Law. I sentence you to six years on that which means that the definite sentence on the underlying felony of the first degree is six years. You're subject to an indefinite sentence.
. . .
So, again, the definite sentence would be the six years on the underlying felony of the first degree that will be served and you serve those firearm specifications. However, if you violate those rules and regulations, you face an indefinite sentence which would be an additional three years for a total perhaps of nine years . . . . Six definite. Nine indefinite.

{¶ 49} Ginley received 559 days of jail-time credit.

{¶ 50} The court reduced its sentence to a journal entry, which reads in relevant part:

The sentence imposed upon Defendant is an indefinite sentence under SB 201 - the Reagan Tokes Law.
. . .
The court imposes a prison sentence . . . of 12 year(s).
Defendant is sentenced to a minimum prison term of 12 years.
Defendant is sentenced to a maximum prison term of 15 years.
Defendant sentenced to 6 years prison on Count 1 . . . . 3-year firearm specification to run prior to and consecutive to base charge. 3-year firearm specification to [run] prior to and consecutive to 3-year firearm specification in Count 5.
Defendant sentenced to 6 years prison on Count 6 . . . .
Defendant sentenced to 6 years prison on Count 5 . . . . 3-year firearm specification to run prior to and consecutive to 3-year firearm specification in Count 1.
. . .
Defendant notified that there is a rebuttable presumption that the Defendant shall be released from service of the sentence at expiration of the minimum term, but that said presumption may be rebutted at a hearing held under [R.C.] 2967.271 . . . .

N. The Appeal

{¶ 51} Ginley appealed, raising the following assignments of error for review:

Assignment of Error 1:
Appellant was deprived of a fair trial, effective assistance of counsel, and due process where he was not present at every stage of the criminal proceedings as required by Crim.R. 43, Section 10, Article I of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment.
Assignment of Error 2:
Appellant was deprived of his Sixth Amendment right to effective assistance of counsel.
Assignment of Error 3:
The trial court erred when it denied appellant's motion for acquittal under Crim.R. 29 because the State failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
Assignment of Error 4:
Appellant's convictions are against the manifest weight of the evidence.
Assignment of Error 5:
Appellant's constitutional rights were violated when the charges were not dismissed when he was not afforded a speedy trial.
Assignment of Error 6:
The trial court committed an abuse of discretion in allowing testimony outside the scope of cross-examination during redirect examination which violated Appellant's right to a fair trial.
Assignment of Error 7:
Appellant's sentence is contrary to law.

II. Law and Analysis

A. First Assignment of Error - Presence at Court Proceedings

{¶ 52} Ginley contends that his constitutional rights were violated when the trial court held two hearings in his absence.

{¶ 53} The record supports the assertion that Ginley was not present at one hearing. Specifically, Ginley was not present at the initial appearance held on September 14, 2021; the trial court noted that Ginley was in medical isolation. During that hearing, the trial court appointed the public defender's office as counsel for Ginley and counsel waived Ginley's presence. The court then heard arguments on bond and set Ginley's bond. The case was later presented to the grand jury, which returned an indictment. Ginley was thereafter arraigned, and he was present for the arraignment and each of the other hearings held in the case.

{¶ 54} Ginley claims that there was another hearing on March 29, 2022, at which he was not present. The record does not support that assertion. The trial court published a journal entry on that date, which says the following in relevant part:

Hearing waived. Parties waive hearing in open court and on the record and stipulate by journal entry to the court psychiatric clinic report. . . .

{¶ 55} The hearing was waived; there was no hearing on the psychiatric report. Therefore, in addressing this assignment of error, we consider only whether Ginley's rights were violated when he was not present for his initial appearance.

{¶ 56} It is axiomatic that a criminal defendant has a fundamental right to be present at all critical stages of their criminal case. Ohio Const., art. I, § 10; State v. Hale, 2008-Ohio-3426, ¶ 100. Crim.R. 43(A)(1) provides that "the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules."

{¶ 57} However, a violation of Crim.R. 43(A) does not necessarily always result in prejudicial or constitutional error. State v. Taylor, 2017-Ohio-9270, ¶ 4 (8th Dist), citing State v. Davis, 2008-Ohio-2. "'[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." (Emphasis in original.) Hale at ¶ 100, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 17 (1964). The defendant's absence in violation of Crim.R. 43(A), although improper, can constitute harmless error where he suffers no prejudice. Taylor at ¶ 4, citing State v. Williams, 6 Ohio St.3d 281 (1983). "The question is whether his presence has a 'reasonably substantial' relationship to 'the fullness of his opportunity to defend against the charge.'" Hale at ¶ 100, quoting Snyder at 105-106.

{¶ 58} Here, even assuming arguendo that it was error for the trial court to accept appointed counsel's waiver of Ginley's presence at the initial appearance, we find that any error would be harmless. In other words, Ginley failed to meet his burden to show that his absence from the initial appearance was prejudicial.

{¶ 59} Ginley's primary complaint with the initial appearance - the one he repeatedly raised throughout the pretrial proceedings below - is that the court appointed counsel for him when he wanted to proceed pro se. In his pro se filings and in-person hearings, Ginley claimed there had been a "conspiracy" between the prosecution and the public defender appointed to his case, designed to "control the docket" and prevent him from proceeding pro se. On appeal, Ginley focuses instead on the possibility for a plea resolution, arguing that "there was a possibility, even if remote, that the matter could have been resolved more favorable to Mr. Ginley if he had been there [at the initial appearance] to discuss it." Both arguments lack merit.

{¶ 60} We find the latter argument to be speculative, especially in light of Ginley's consistent statements below that he was not interested in a plea and wanted a trial.

{¶ 61} He has further shown no actual prejudice from the trial court's decision to appoint counsel for him at the initial appearance. Indeed, Ginley was arraigned on the indictment and consented - albeit reluctantly - to the appointment of the public defender's office at the arraignment. There is no prejudice apparent in the record from the trial court's appointment of counsel to represent Ginley between the initial appearance and the arraignment.

{¶ 62} Moreover, after he was deemed competent to stand trial and to proceed pro se, the court allowed him to waive his right to counsel. Ultimately, however, on the day of trial, Ginley changed his mind again and asked counsel to represent him.

{¶ 63} Because Ginley has not shown prejudice resulting from his absence from the initial appearance, we overrule his first assignment of error.

B. Second Assignment of Error - Ineffective Assistance

{¶ 64} Ginley contends that he was denied the effective assistance of counsel because his trial counsel (1) waived his presence at the initial appearance and (2) did not file a pretrial motion to dismiss Counts 7 and 8 (the alleged robbery of John Doe).

{¶ 65} A criminal defendant has the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) the performance of defense counsel was seriously flawed and deficient and (2) the result of the defendant's trial or legal proceeding would have been different had defense counsel provided proper representation. Id.

{¶ 66} In evaluating counsel's performance on a claim of ineffective assistance of counsel, the court must give great deference to counsel's performance and "indulge a strong presumption" that counsel's performance "falls within the wide range of reasonable professional assistance." Strickland at 689; see also State v. Powell, 2019-Ohio-4345, ¶ 69 (8th Dist.) ("A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'"), quoting State v. Pawlak, 2014-Ohio-2175, ¶ 69 (8th Dist.).

{¶ 67} As a general matter, defense counsel's tactical decisions and trial strategies - even "debatable" ones - do not constitute ineffective assistance of counsel. See, e.g., State v. Black, 2019-Ohio-4977, ¶ 35 (8th Dist.); State v. Foster, 2010-Ohio-3186, ¶ 23 (8th Dist.); see also State v. Conway, 2006-Ohio-2815, ¶ 101, 111. Reviewing courts "will ordinarily refrain from second-guessing strategic decisions counsel make at trial," even where trial counsel's strategy was "questionable" and even where appellate counsel argues that they would have defended against the charges differently. State v. Myers, 2002-Ohio-6658, ¶ 152; State v. Mason, 82 Ohio St.3d 144 (1998); State v. Quinones, 2014-Ohio-5544, ¶ 25 (8th Dist.).

{¶ 68} For the reasons discussed above with respect to the first assignment of error, Ginley failed to meet his burden to show that his absence from the initial appearance prejudiced him in any way.

{¶ 69} Ginley's argument regarding a pretrial motion to dismiss the indictment also lacks merit, for at least three reasons.

{¶ 70} First, Counts 7 and 8 were dismissed by the trial court pursuant to Crim.R. 29 and, therefore, Ginley was not convicted on either count.

{¶ 71} Second, Ginley complains that the jury heard evidence regarding the shooting on West 98th Street and speculates that the jury would have acquitted him on other counts if this evidence had been excluded. But we are not convinced that a pretrial motion to dismiss would have been successful, and even if it had been, there is no reason to expect that the evidence from the West 98th Street shooting would have been excluded as a result. The investigation of the West 98th Street shooting led to law enforcement tying Ginley to the other robberies; the crime scene led to the discovery of the weapon and clothing allegedly used in the other robberies. It is reasonable to expect that the State would have offered evidence of that shooting to explain its investigation and prove that Ginley was the person who committed the other robberies.

{¶ 72} Third, Ginley waived his right to counsel and proceeded pro se from November 16, 2022, until the first day of trial on March 6, 2023. The trial court specifically warned Ginley, during its colloquy regarding the waiver of counsel, as follows:

THE COURT: Do you understand that if you represent yourself you will give up the right to later claim you did not have effective and proper legal counsel on appeal?
THE DEFENDANT: I understand that, sir.

{¶ 73} As Ginley was representing himself at that point, any failure to file a pretrial motion to dismiss would be his own. See State v. Dinger, 2022-Ohio-608, ¶ 18 (10th Dist.) ("Appellant cannot raise a claim of ineffective assistance of counsel because there is no right to hybrid counsel and Appellant cannot assert his own ineffectiveness as counsel."); State v. Rohrig, 2023-Ohio-3176, ¶ 23 (10th Dist.) ("If the alleged ineffective assistance happened after [the defendant] chose to proceed pro se, then he cannot assert a claim on appeal for ineffective assistance."). Indeed, Ginley filed a pro se motion to dismiss the indictment in February 2023, without arguing that Counts 7 and 8 should be dismissed.

{¶ 74} Because Ginley failed to show deficient performance by counsel and, further, failed to show any prejudice from his absence at the initial appearance or the failure to file a pretrial motion to dismiss Counts 7 and 8, we overrule his second assignment of error.

C. Third and Fourth Assignments of Error - Sufficiency and Manifest Weight of the Evidence

{¶ 75} We address Ginley's third and fourth assignments of error together. Ginley contends that the State did not present sufficient evidence with respect to any count on which he was found guilty. He further contends that his convictions were against the manifest weight of the evidence.

{¶ 76} While Ginley challenges every count on which he was found guilty, any error with respect to the sufficiency or manifest weight of the evidence on the robbery counts (Counts 2, 4 and 6) is harmless because those counts were merged into aggravated robbery at sentencing. See State v. Ramos, 2016-Ohio-7685, ¶ 14 (8th Dist.) ("When counts in an indictment are allied offenses, and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would be harmless . . . ."), citing State v. Powell, 49 Ohio St.3d 255, 263 (1990).

{¶ 77} Therefore, in addressing these assignments of error, we consider only whether the convictions for aggravated robbery (with specifications, as to Counts 1 and 5), having weapons while under disability and receiving stolen property were supported by sufficient evidence and were not against the manifest weight of the evidence.

{¶ 78} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the State has met its burden of production at trial. State v. Hunter, 2006-Ohio-20, ¶ 41 (8th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law. Thompkins at 386.

{¶ 79} An appellate court's function when reviewing the sufficiency of evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince a reasonable juror of the defendant's guilt beyond a reasonable doubt. Id.; see also State v. Bankston, 2009-Ohio-754, ¶ 4 (10th Dist.) (noting that "in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the State's witnesses testified truthfully and determines if that testimony satisfies each element of the crime"). We must determine "'whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" State v. Leonard, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶ 80} A manifest-weight challenge, on the other hand, attacks the credibility of the evidence presented and questions whether the State met its burden of persuasion at trial. See State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.), citing Thompkins at 387; State v. Bowden, 2009-Ohio-3598, ¶ 13 (8th Dist.).

{¶ 81} When considering an appellant's claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a "'thirteenth juror'" and may disagree with "the factfinder's resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). The reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witness' credibility and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). Reversal on manifest weight grounds is reserved for the "'exceptional case in which the evidence weighs heavily against the conviction.'" Thompkins at 387, quoting Martin.

{¶ 82} The elements of an offense may be proven by direct evidence, circumstantial evidence, or both. See, e.g., State v. Wells, 2021-Ohio-2585, ¶ 25 (8th Dist.), citing State v. Durr, 58 Ohio St.3d 86 (1991). Circumstantial evidence and direct evidence have "equal evidentiary value." Wells at ¶ 26, citing State v. Santiago, 2011-Ohio-1691, ¶ 12 (8th Dist.).

1. Aggravated Robbery and Firearm Specifications

{¶ 83} Ginley's convictions on two counts of aggravated robbery, along with (as to two of those counts) one- and three-year firearm specifications, were supported by sufficient evidence and were not against the manifest weight of the evidence.

{¶ 84} A person commits aggravated robbery by having a deadly weapon on or about their person or under their control in either attempting or committing a theft offense or in fleeing immediately after the attempt or offense, when the offender either displays, brandishes, uses or indicates that the person possesses it. R.C. 2911.01(A)(1).

{¶ 85} Under most circumstances, a person is subject to a mandatory one-year prison sentence if the person "had a firearm on or about [the person's] person or under [their] control while committing" an offense. See R.C. 2941.141(A); R.C. 2929.14(B)(1)(a)(iii).

{¶ 86} Under most circumstances, a person is subject to a mandatory three-year prison sentence if the person both had the firearm and "displayed [it], brandished [it], indicated that [the person] possessed [it], or used it to facilitate the offense." See R.C. 2941.145(A); R.C. 2929.14(B)(1)(a)(ii).

{¶ 87} There was sufficient evidence for a reasonable factfinder to conclude that Ginley committed an aggravated robbery at Burger King, Pizza Hut and Domino's Pizza. Further, there was sufficient evidence that he possessed a firearm and brandished it or indicated that he possessed it during the Burger King and Domino's Pizza robberies.

{¶ 88} With respect to the Domino's Pizza robbery, two employees testified that the robber demanded money from the register, pointing a gun at one employee and threatening to shoot another in the head. This testimony is corroborated by surveillance video.

{¶ 89} With respect to the Burger King robbery, the manager of the restaurant testified that a person demanded money from the cash register and told the employee that he had a gun, he lifted his shirt to reveal a gun concealed in his waistband and took the gun out of his waistband and put it on the countertop during the robbery. This testimony is also corroborated by surveillance video.

{¶ 90} The Burger King manager and a Domino's Pizza employee identified Ginley in the courtroom as the person who robbed them. That identification was supported by other evidence in the record. Ginley appears to have the same tattoo as worn by the robber during the Burger King and Domino's Pizza robberies and he has a similar build to the robber. Further, he admitted to the Burger King robbery. A shirt matching that worn by the Burger King robber was found near a firearm at the scene of a shooting later that same day. A short time later, Ginley was found bleeding outside of the blue GMC vehicle that had been seen in surveillance video near the scene of the Pizza Hut robbery.

{¶ 91} The State did not present eyewitness testimony from employees inside the Pizza Hut. However, viewing the evidence in the light most favorable to the State, there was sufficient evidence to support an aggravated-robbery conviction. The offense happened within minutes of the aggravated robbery at Burger King, in which the robber brandished a firearm. The offense occurred shortly before the West 98th Street shooting, after which a similar-looking firearm was recovered near clothing that was consistent with that worn by the Burger King robber.

{¶ 92} This evidence was sufficient for the factfinder to conclude that Ginley robbed Burger King and Domino's Pizza and that he possessed, brandished and used a firearm to facilitate both offenses. The evidence was further sufficient for the factfinder to conclude that Ginley robbed the Pizza Hut with a deadly weapon.

{¶ 93} As to the manifest weight of the evidence, Ginley primarily reasserts the arguments he made with respect to sufficiency. In addition, he points out that Zangara and Crawford had different recollections about the amount of money taken during the Domino's Pizza robbery. Finally, he argues that witness identification of Ginley in court was not credible because the person who robbed the businesses was wearing a medical mask.

{¶ 94} Ginley argued his defense to the trial court and the jury; the factfinders were free to reject any portion of the State's evidence or witness testimony that was inconsistent or otherwise unreliable. We note that Ginley's trial defense was to admit that he committed the robberies with a gun but to deny that the gun was loaded or stolen. After a careful review of the record and considering his defense


Summaries of

State v. Ginley

Court of Appeals of Ohio, Eighth District, Cuyahoga
Jul 18, 2024
2024 Ohio 3294 (Ohio Ct. App. 2024)
Case details for

State v. Ginley

Case Details

Full title:STATE OF OHIO, Plaintiff-Appellee, v. DANIEL GINLEY, Defendant-Appellant.

Court:Court of Appeals of Ohio, Eighth District, Cuyahoga

Date published: Jul 18, 2024

Citations

2024 Ohio 3294 (Ohio Ct. App. 2024)