Opinion
No. 103035
04-26-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. ANDREW L. JACKSON DEFENDANT-APPELLANT
ATTORNEYS FOR APPELLANT Matthew M. Nee Leigh S. Prugh Nee Law Firm 26032 Detroit Road, Suite 5 Westlake, Ohio 44145 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: John Farley Hirschauer Daniel T. Van Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-577257-A BEFORE: Jones, J., E.T. Gallagher, P.J., and Keough, J.
ATTORNEYS FOR APPELLANT
Matthew M. Nee
Leigh S. Prugh
Nee Law Firm
26032 Detroit Road, Suite 5
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor BY: John Farley Hirschauer
Daniel T. Van
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} This case was heard on remand from the Ohio Supreme Court. In State v. Jackson, 8th Dist. Cuyahoga No. 103035, 2016-Ohio-704, this court held that it lacked jurisdiction to hear Andrew Jackson's ("Jackson") appeal because the kidnapping counts of his indictment were dismissed without prejudice and, therefore, there was no final, appealable order. The Ohio Supreme Court disagreed, holding that "any dismissal of a count in an indictment resolves that count and does not prevent a judgment of conviction from being final and appealable." State v. Jackson, 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, ¶ 1. The court reversed the judgment of this court, reinstated Jackson's appeal, and remanded the case to this court. We now consider the merits of Jackson's appeal. For the reasons that follow, we affirm.
{¶2} In 2013, Jackson and two codefendants, Marcian Jackson (no relation) and Cleatrice Mayo, were charged with two counts of kidnapping with one- and three-year firearm specifications, two counts of aggravated robbery with one- and three-year firearm specifications, and grand theft of a motor vehicle with one- and three-year firearm specifications. The codefendants entered into a plea agreement with the state of Ohio and pleaded guilty to amended indictments.
{¶3} Jackson's case proceeded to trial. After the evidence was presented and the jury was deliberating, the jury informed the trial court that it could not reach a decision on Counts 1 and 3, which were the kidnapping counts with one- and three-year firearm specifications. The parties requested the court to declare a mistrial on the kidnapping counts and proceed to a verdict on the remaining counts. The court agreed and the jury returned a verdict of guilty of aggravated robbery and grand theft of a motor vehicle. The jury acquitted Jackson of the firearm specifications attendant to the aggravated robbery and grand theft charges.
{¶4} The trial court indicated to the parties that they should try to work something out on the remaining charges before it set the case for retrial on the kidnapping charges. The state responded that it was moving to dismiss the kidnapping charges and the trial court issued a journal entry dismissing those charges. At the subsequent sentencing hearing, the trial court found that the grand-theft count and one count of aggravated robbery were allied offenses and merged those two counts. The court sentenced Jackson to a six-year term of incarceration on each aggravated robbery count to be served concurrently.
{¶5} The following pertinent evidence was presented at trial.
{¶6} Jeremiah Dallison ("Dallison") and his uncle, Timothy Miller ("Miller"), lived in Bergholz, Ohio. Prior to August 13, 2013, Dallison had known Jackson for approximately two months, but only knew him as "Gino." Dallison would "party" with Jackson in Salem, Ohio and occasionally get heroin from him. On the morning of August 13, 2013, Jackson called Dallison and asked for a ride from Elyria, Ohio to Bergholz in exchange for heroin and money. Dallison called Miller, who was also a heroin addict. Miller owned a 2005 Chevy Malibu and agreed to drive Dallison to pick up Jackson. Dallison and Miller left Bergholz around 9:00 a.m. for the two and one-half hours drive to Elyria. After picking Jackson up, Jackson directed Miller to pick up two more friends, Mayo and Marcian Jackson. Jackson then directed Miller to drive to Cleveland to drop them all off at someone's house. When they arrived on the westside of Cleveland, Jackson instructed Miller to pull his car down an alley. After approximately 15 minutes, Jackson and Dallison got out of the car. Miller remained inside the car with the Marcian Jackson and Mayo. Mayo got into the front passenger seat. Jackson told Dallison to get into the back seat. At this point, Jackson pulled out what appeared to be a black handgun, chambered a round, and told Dallison: "This is for real. This is going to happen. Give me all your stuff that you have." Jackson's accomplice, Mayo, had a .22 caliber handgun. Marcian Jackson had a 9 mm Makarov handgun. Jackson took Dallison's cell phone and money and also took some things from Miller. Jackson then ordered Miller and Dallison out of the car.
{¶7} Marcian Jackson got into the driver's seat and they drove off, leaving Dallison and Miller in the alley. Dallison ran down the alley and asked a passerby to use her phone. He called 911 and reported that they had been abducted and robbed by strangers. Dallison provided a description of the vehicle and men who robbed them.
{¶8} Miller testified that he is a drug addict who lives in Bergholz. He testified to substantially the same facts as Dallison regarding the events of August 13, 2013; he was contacted by Dallison to give Jackson a ride in exchange for drugs. Miller identified Jackson as the person who directed him throughout the ride about picking up his friends through Cleveland. Miller also described the scene and testified that each defendant had a handgun during the robbery. According to Miller, the men took his GPS, wallet, money, and car.
{¶9} Miller and Dallison initially denied knowing Jackson when the crime was first reported but, upon further questioning by the police, came clean about the circumstances of the robbery.
{¶10} Cleveland Police Detectives John Lally ("Detective Lally") and Elliot Landrau ("Detective Landrau") located Miller's car a few hours after the robbery, just two streets away from the scene. Detective Lally staked out the car and, several hours later, observed Jackson and two other men walk down the street toward the vehicle. The men looked around, saw Detective Lally, turned around, and started to walk away. Because the three men fit the description of the perpetrators, Detective Lally called it in, and the men were quickly arrested.
{¶11} Detective Landrau assisted in the arrest of the three men and found Miller's GPS on Mayo. Landrau interviewed Jackson after his arrest. Jackson stated that he was there when Marcian Jackson and Mayo pulled out guns and robbed Dallison and Miller, but denied prior knowledge of the plan or possessing a gun. The police recovered the 9 mm Makarov handgun from Marcian Jackson.
{¶12} The police went to Jackson's girlfriend's house, which was located near the crime scene, and recovered a BB gun that was similar to the gun Dallison described to police. Dallison testified that the recovered BB gun was identical to the object held by Jackson during the theft. While holding the BB gun at trial, Dallison testified that the slide functioned similarly to the gun Jackson held during the robbery.
{¶13} As mentioned, Marcian Jackson and Mayo entered into a plea agreement with the state and were both sentenced to prison. Jackson was sentenced to a total of six years in prison.
{¶14} Jackson moved for leave to file a delayed appeal, which this court granted. On appeal, Jackson raises four assignments of error:
I. The trial court erred by denying Jackson's motion to disqualify counsel.
II. The trial court erred by improperly instructing the jury as to the definition of deadly weapon.
III. The trial court erred by finding Jackson guilty on Counts 2 and 4 based upon insufficient evidence.
IV. Jackson's counsel provided ineffective assistance by failing to provide all discovery to Jackson, which prevented Jackson from aiding in his defense, and by failing to object to improper jury instructions.
I. Law and Analysis
A. Motion to Disqualify Counsel
{¶15} In the first assignment of error, Jackson contends that the trial court erred by denying his motion to disqualify his attorney.
{¶16} An indigent criminal defendant's Sixth Amendment right to competent counsel does not extend to a right to counsel of the defendant's choosing. Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). When a defendant requests the appointment of new counsel, the court must inquire into the basis for the request and determine whether the accused has shown a breakdown in the attorney-client relationship that warrants the substitution. State v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988). This inquiry need not be lengthy and may only address specific issues raised by the defendant. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68. Issues that show good cause for substitution can include "a conflict of interest, a complete breakdown in the attorney-client relationship or an irreconcilable conflict which leads to an apparently unjust result." State v. Blankenship, 102 Ohio App.3d 534, 558, 657 N.E.2d 559 (12th Dist.1995). Substitution of counsel is within the discretion of the trial court. State v. Jones, 91 Ohio St.3d 335, 343-344, 744 N.E.2d 1163 (2001).
{¶17} On the day of trial, Jackson told the court he would like to request another attorney, stating that his attorney was not the "right fit" for him and that they were not "on the same page." That was the first time Jackson informed the court of his dissatisfaction with his attorney.
{¶18} Jackson claimed that he had only met with his attorney one time and had not received copies of discovery. Defense counsel disagreed with Jackson's statements, insisting that he had met with Jackson "several times" and talked about the case "quite a bit. I've talked to him about as much if not more than any other client I have." He also contended he had gone over the police report with Jackson. The trial court denied the motion, telling Jackson that he was being represented by a "competent, seasoned" attorney.
{¶19} Jackson, who made an oral pro se motion to disqualify counsel on the day of trial, has failed to articulate a valid basis for removing his court appointed counsel. We find that the trial court's inquiry into Jackson's complaints regarding his legal representation was adequate and complied with the court's duty to address them on the record. The trial court did not abuse its discretion in denying Jackson's motion to disqualify counsel.
{¶20} Accordingly, the first assignment of error is overruled.
B. Jury Instructions
{¶21} In the second assignment of error, Jackson contends that the trial court erred by improperly instructing the jury as to the definition of deadly weapon.
{¶22} As an initial matter, we note that defense counsel did not object to the definition of a deadly weapon that was given to the jury. Therefore, Jackson has waived all but plain error. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain error does not exist unless, but for the error, the outcome of the trial would clearly have been different. State v. Biros, 78 Ohio St.3d 426, 436, 678 N.E.2d 891 (1997). Further, notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶23} R.C. 2923.11(A) defines a deadly weapon as: any instrument, device, or thing capable of inflicting death, and designed or especially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C. 2923.11(B) provides:
(1) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.
(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.
{¶24} Jackson argued at trial that neither the BB gun he was alleged to have carried nor the 9 mm Makarov gun that police recovered from Marcian Jackson that was loaded, but inoperable, meet the definition of a deadly weapon. But witnesses testified that each of the three men had a gun and thus, there were three "firearms" used during the commission of the crime. Moreover, Dallison testified that Jackson pulled out what appeared to be a black handgun, chambered a round, pointed the "gun" at Dallison and told him: "This is for real. This is going to happen. Give me all your stuff that you have." This is sufficient to show an implicit threat. While not presented with an explicit threat that the victims would be shot if he failed to comply with Jackson and his cohorts' demands, the totality of the circumstances demonstrates that the guns were handled in a manner that implied they could be used to shoot the victims if they failed to comply. See State v. Pride, 10th Dist. Franklin No. 11AP-55, 2011-Ohio-6055 (finding sufficient evidence for having a weapon while under a disability when defendant hit victim in face with gun, then tried to point gun at victims as they sped away, "looking like he was going to point and shoot at us." Id. at ¶ 19).
{¶25} In addition, this court has found that a BB gun can be a "deadly weapon." See State v. Houston, 2014-Ohio-3911, 19 N.E.3d 546, ¶ 18 (8th Dist.) (A BB gun can be a deadly weapon because the body of the gun itself can be used to bludgeon and rational trier of fact could conclude that shooting a BB into the side of the victim's face at close range could prove to be fatal.); State v. White, 8th Dist. Cuyahoga No. 92972, 2010-Ohio-2342, ¶ 5 (a BB gun can be a deadly weapon if the BB is expelled at a sufficient rate of speed and a BB gun can be a deadly weapon because the body of the gun itself can be used to bludgeon).
{¶26} As to the third firearm, the one that was not recovered, courts have held that when attempting to prove that a deadly weapon constitutes a firearm, the state is not required to produce the gun. State v. Glover, 10th Dist. Franklin No. 07AP-832, 2008-Ohio-4255, ¶ 45, citing State v. Murphy, 49 Ohio St.3d 206, 551 N.E.2d 932 (1990). Miller testified that the third gunman, who matched Mayo's description, had a "gun" pointed at him "the whole time."
{¶27} In light of the above, we do not find that the trial court committed plain error in giving a deadly weapon instruction to the jury.
{¶28} The second assignment of error is overruled.
C. Sufficiency of the Evidence
{¶29} In the third assignment of error, Jackson contends that his convictions were supported by insufficient evidence.
{¶30} Crim.R. 29(A) provides that, "[t]he 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." When reviewing a trial court's denial of a Crim.R. 29 motion for judgment of acquittal, appellate courts apply the same standard as that applied to claims regarding sufficiency of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). As set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), when reviewing the sufficiency of the evidence supporting a criminal conviction, an appellate court must examine the evidence submitted at trial to determine whether such evidence, if believed, would convince an average person of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is 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. Id. at paragraph two of the syllabus.
{¶31} Jackson contends there was insufficient evidence that he possessed a deadly weapon, therefore, he cannot be convicted of aggravated robbery.
{¶32} Aggravated robbery, under R.C. 2911.01(A)(1), provides that no person in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense, shall have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.
{¶33} Jackson's argument under this assigned error mirrors the argument he made in the second assignment of error, but in this assignment of error he contends that the state provided insufficient evidence that the weapon he possessed was operable. For the same reasons as set forth above, we find no merit to his claim.
{¶34} Here, Jackson brandished what Dallison and Miller thought was a black handgun, chambered a round, and told Dallison "this is for real. This is going to happen. Give me all your stuff that you have." Mayo also had a gun, which turned out to be inoperable. Marcian Jackson brandished a "jet black gun," which was never recovered.
{¶35} In State v. Smith, 8th Dist. Cuyahoga No. 94167, 2011-Ohio-306, this court found that whether a "real" looking toy gun or the real gun was used to commit aggravated robbery was not dispositive because the evidence established that the fear of the victims was of such a nature that they were induced to part with their property against their will. Id. at ¶ 25. The same is true in this case. Miller testified that the BB gun looked like a real gun, appeared to have the weight of a real gun, and that he did not know it was not real at the time of the carjacking. He further testified that at the point Jackson pulled Dallison out of the car, he could have driven away, but he stayed because he did not want his nephew to get shot.
{¶36} Consequently, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the state proved all of the essential elements of the instant charges beyond a reasonable doubt. Thus, the trial court properly denied Jackson's motion for acquittal and the third assignment of error is overruled.
D. Ineffective Assistance of Trial Counsel
{¶37} In the fourth assignment of error, Jackson claims that defense counsel provided ineffective assistance by failing to provide all discovery to Jackson, which prevented Jackson from aiding in his defense, and by failing to object to improper jury instructions.
{¶38} We review a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the deficient performance. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph one of the syllabus.
{¶39} To show prejudice, a defendant must prove that, but for his or her lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different. Id. at paragraph two of the syllabus. Judicial scrutiny of a lawyer's performance must be highly deferential. State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1983).
{¶40} Jackson claims that his attorney was ineffective because counsel did not provide him with copies of discovery or meet with him a sufficient amount of times. He also contends his counsel was ineffective for failing to contest the jury instructions with regard to "deadly weapon."
{¶41} We have already addressed these claims and found no merit to them. Thus, Jackson cannot show that his attorney's performance fell below an objective standard of reasonable representation or that his counsel's representation prejudiced him and resulted in him not receiving a fair trial.
{¶42} The fourth assignment of error is overruled.
{¶43} Judgment affirmed.
It is ordered that appellee recover of appellant 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 convictions 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. /s/_________
LARRY A. JONES, SR., JUDGE KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS
IN JUDGMENT ONLY