[Cite as State v. Nelson, 2012-Ohio-5797.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25026
v. : T.C. NO. 11CR3525/1
KYLE NELSON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 7th day of December , 2012.
..........
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Kyle Nelson was convicted after a jury trial of aggravated robbery,
felonious assault, and discharging a firearm on or near prohibited premises; each charge had
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an accompanying firearm specification. Nelson was also convicted after a bench trial of
having a weapon while under disability. The trial court sentenced him to an aggregate term
of 20 years in prison. For the following reasons, Nelson’s convictions will be affirmed.
I.
{¶ 2} The evidence at trial revealed the following facts:
{¶ 3} In October 2011, James Wheeler arranged to meet Deidre Nichols at his
apartment on Sailboat Run. The two agreed that Nichols would have sex with Wheeler in
exchange for Wheeler’s paying her $500. Nichols told Wheeler that her sister and her
sister’s boyfriend would be driving her to Wheeler’s apartment.
{¶ 4} Wheeler and Nichols had not previously met. Wheeler knew Nichols
through various social media websites, and they had exchanged text messages. Wheeler
also had gone to see Nichols at the strip club where she danced, but the two had never
conversed.
{¶ 5} At approximately 9:00 p.m. on October 11, Wheeler went to his apartment’s
parking lot to meet Nichols. Nichols arrived in a dark red Saturn; she was seated in the rear
passenger area. Four other individuals were also inside the vehicle– two men in the front
(Nelson and David Velez) and two teenagers (a girl and a boy) in the rear. Nelson, whom
Wheeler recognized from middle school, was seated in the front passenger seat. Nelson
was Nichols’s ex-boyfriend.
{¶ 6} Wheeler approached the vehicle, and Nichols got out. After conversing
briefly with Nichols and Nelson, Wheeler handed an envelope with several hundred dollars
to the girl sitting in the middle rear passenger seat. After giving the girl a moment to count
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the money, Wheeler asked if “everything was cool,” so that he and Nichols could go into his
apartment. Nelson pointed a gun at Wheeler and told him to “go about your business.”
Nichols got back into the rear of the vehicle, and the car drove off. Nichols testified that
she never intended to go through with her arrangement with Wheeler; instead, she and her
companions had gone to Wheeler’s apartment with the intention of taking money from him.
{¶ 7} Wheeler got into his car, a 1996 Geo Prizm, and followed the Saturn out of
the apartment complex so that he could get its license plate number. Wheeler called 911 as
he drove and stated that his car had been “robbed.” While he was speaking with the
dispatcher, Nichols and the girl in the back seat looked over their shoulders and Nelson
leaned out of the front passenger window. Wheeler “ducked underneath * * * the steering
column” and then heard a “real loud pop,” which he recognized as a gunshot. Nichols and
Velez also testified that they saw Nelson lean out the window and fire a single shot at
Wheeler’s car. Wheeler slammed on the brakes, turned around, and returned to his
apartment. Wheeler’s Prizm had damage to the hood and windshield wiper arm that did not
exist prior to that day.
{¶ 8} The Saturn was stopped a few minutes later by Bellbrook Patrol Officer
Brian Meade. Several other officers from other jurisdictions assisted with the stop. The
five individuals in the Saturn were removed from the vehicle, and a firearm was located
under the front passenger seat, where Nelson had sat. Upon testing, the firearm was found
to be operable.
{¶ 9} The five occupants of the Saturn were transported to the Montgomery
County Sheriff’s Office in Washington Township, where Nelson was interviewed by
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Detective Gary Ridgeway. Nelson told Ridgeway about the text messages between Nichols
and Wheeler, the plan to take $500 from Wheeler, and how Wheeler had pursued them in his
vehicle. Detective Ridgeway testified that $445 was recovered.
{¶ 10} Wheeler spoke with police officers about the incident at his apartment. He
initially reported that he had arranged to purchase marijuana from Nichols and had been
robbed. The following day, Detective Ridgeway confronted Wheeler with his failure to tell
the whole truth, and Wheeler then told the officer about the arrangement for sex that he had
made with Nichols.
{¶ 11} In November 2011, Nelson was indicted for aggravated robbery (deadly
weapon), felonious assault (deadly weapon), discharging a firearm on or near a prohibited
premises, and having a weapon while under disability. The following month, Nelson was
reindicted for the same charges with the addition of firearm specifications for the aggravated
robbery, felonious assault, and discharging a firearm on or near a prohibited premises
counts. Nelson moved to dismiss the specifications, claiming that the addition of these
specifications without new evidence established a “spirit of vindictiveness,” and he sought to
review the minutes of the grand jury to support that assertion. The motion was denied.
{¶ 12} The having a weapon while under disability charge was tried to the court
while the remaining charges and specifications were tried to a jury. Nelson was convicted
of all charges and specifications. After consulting with the State, the trial court merged the
discharging a firearm on or near a prohibited premises charge into the felonious assault
charge. The court sentenced Nelson to seven years for the aggravated robbery and seven
years for the felonious assault, along with three years for each of the accompanying firearm
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specifications. The court found that the two offenses were committed with a separate
animus, and it ordered the sentences to run consecutively to each other. The court imposed
a 36-month sentence for having a weapon while under disability, to be served concurrently
with the other two sentences. Nelson’s aggregate sentence was 20 years in prison.
{¶ 13} Nelson appeals from his convictions, raising six assignments of error.
II.
{¶ 14} We begin with Nelson’s sixth assignment of error, which states:
THE JURY VERDICT SHOULD BE REVERSED BECAUSE IT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE
IS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
{¶ 15} Nelson claims that his convictions were based on insufficient evidence and
against the manifest weight of the evidence. He argues that, “when error is removed” in the
trial, there was insufficient evidence to support his convictions. He further asserts that the
testimony of Wheeler, Nichols, and Velez was inconsistent and not credible, making his
convictions against the manifest weight of the evidence.
{¶ 16} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). When reviewing whether the State has presented sufficient evidence to support
a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in a light most favorable to the State, could have found the essential elements of
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the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.
{¶ 17} Nelson claims that the trial court erred in admitting certain evidence at trial
and that, absent this evidence, there was insufficient evidence to support his convictions.
The Supreme Court of Ohio has stated that, in reviewing the sufficiency of the State’s
evidence, an appellate court must consider all of the evidence that was admitted by the trial
court, without consideration of whether any of that evidence should have been excluded.
State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, following Lockhart v.
Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Troisi, 124 Ohio
St.3d 404, 2010-Ohio-275, 922 N.E.2d 957, ¶ 7. “By permitting a reviewing court to
consider all the evidence presented at trial, Lockhart’s holding recognizes that the [S]tate
may rely upon the trial court’s evidentiary rulings in deciding how to present its case.”
Brewer at ¶ 19.
{¶ 18} Nelson has not argued that the State’s evidence, as admitted by the trial
court, was insufficient to support his convictions, and we find that the State’s evidence was
legally sufficient. Two witnesses testified that Nelson brandished a firearm and pointed it at
Wheeler immediately after Nelson’s companions took Wheeler’s money under false
pretenses; the group then fled with Wheeler’s money. In addition, the State’s evidence
established that, after being followed by Wheeler along several roads, Nelson leaned out of
the Saturn’s front passenger window and fired a shot at Wheeler’s vehicle. The State’s
evidence, if believed, was sufficient to prove the offenses of aggravated robbery, felonious
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assault, and discharging a firearm on or near a prohibited premises, and the accompanying
specifications.
{¶ 19} Nelson further argues that his convictions were against the manifest weight
of the evidence. In contrast to the sufficiency of the evidence standard, “a weight of the
evidence argument challenges the believability of the evidence and asks which of the
competing inferences suggested by the evidence is more believable or persuasive.” Wilson
at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the
evidence, the appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider 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, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 20} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). However, we may determine which of several competing inferences suggested by
the evidence should be preferred. Id. The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717.
[Cite as State v. Nelson, 2012-Ohio-5797.]
{¶ 21} Upon review of the record, we cannot conclude that the jury lost its way in
finding Nelson guilty of the charged offenses and specifications. The jury heard the
testimony of Wheeler, Nichols, Velez, several law enforcement officers, and a firearm
expert. It was the province of the jury to assess the witnesses’ credibility and determine
whether the State had proven its case beyond a reasonable doubt. Given the evidence
presented, the jury’s verdicts were not against the manifest weight of the evidence.
{¶ 22} The sixth assignment of error is overruled.
III.
{¶ 23} Nelson’s first assignment of error states:
THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL
COURT ERRED IN DENYING MR. NELSON’S MOTION FOR A
MISTRIAL IN TWO SEPARATE INSTANCES.
{¶ 24} Nelson moved for a mistrial on two occasions during jury selection – once
after the jury was informed that a potential witness worked for the Greene County Probation
Department and once based on a response by a prospective juror regarding the presumption
of innocence. Both of Nelson’s motions were denied. Nelson claims that the trial court
erred in denying his motions for a mistrial, because he could no longer receive a fair trial as
a result of the offending statements during jury selection.
{¶ 25} A mistrial should only be declared when a fair trial is no longer possible.
State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991); State v. Engle, 2d Dist.
Montgomery No. 22934, 2009-Ohio-4787, ¶ 35. “The decision whether to grant a mistrial
lies within the sound discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.” State v. Williams, 2d Dist. Montgomery No. 22126,
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2008-Ohio-2069, ¶ 30, quoting State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796
N.E.2d 506. An abuse of discretion means “that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶ 26} Early in the State’s voir dire, the prosecutor told the prospective jurors that it
had a long list of potential witnesses that might testify in the case. The prosecutor stated,
“And I don’t want to scare you because it doesn’t mean that we’re going to call all of these
witnesses. But I want you to know – or I want to know whether you are familiar with any of
them.” The State then listed twelve individuals from the Montgomery County Sheriff’s
Office, two corrections officers from the Montgomery County Jail, three officers from the
Bellbrook Police Department, and three individuals from the Centerville Police Department.
The State continued:
Now going on to other witnesses. Andy Stockton (phonetic) with the Greene
County Probation Department. James Wheeler (phonetic), Randy Hollin
(phonetic), Amanda Martin (phonetic), Deirdre Nicholls (phonetic), David
Valez (phonetic). Chris Vonturo (phonetic) with the Montgomery County
Crime Lab. Amy Vismiller (phonetic) with the Montgomery County Crime
Lab. Sergeant Matt Haines with the Montgomery County Sheriff’s Office.
Captain Jeff Feorida (phonetic) with the Beavercreek Police Department.
The State reiterated that it was not going to call all of the named individuals, but “we need to
make sure and see if you know anyone who’s involved in the case.”
{¶ 27} Nelson did not immediately object to the State’s presentation of its witness
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list to the prospective jurors. The State proceeded to ask the jurors about whether they or a
close family member or friend had been a victim of a crime, had a prior criminal conviction,
prior jury service, and whether they could judge a person’s guilt or innocence.
{¶ 28} At the conclusion of a sidebar discussion with a prospective juror regarding
one of the State’s questions, Nelson’s counsel moved for a mistrial, arguing that the State’s
mentioning of the probation officer, Andy Stockton, as a potential witness was prejudicial.
Counsel argued that “[a]nyone who hears ‘probation officer’ knows that he’s had a prior
record * * * the jury’s been biased at this point.” The State responded that it accidentally
mentioned Stockton’s name (presumably because his testimony was relevant only to the
having a weapon while under disability, for which a jury trial had been waived), but there
was no suggestion that he would be testifying about a prior conviction. The State further
asserted that any assumption about Stockton’s testimony could be cured by a limiting
instruction. Nelson’s counsel asserted that bias had already occurred and that an instruction
would not cure the defect.
{¶ 29} The trial court overruled the motion, reasoning that “just telling the person’s
profession * * * doesn’t give any clue as to what the testimony may be.” And at the end of
the State’s voir dire, the court gave the following instruction:
Ladies and gentlemen, before Mr. Wilmes begins with his questions, I do
want to advise you of one matter. You may have, during the State’s opening
remarks, heard a list of witnesses regarding also the professions of certain
people that is on the witness [list]. The fact that the particular profession of
a particular witness was mentioned cannot be used in any way in the
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consideration of this case and should have no bearing upon the credibility of
that witness. The Court is going to instruction you as to the law as to
judging one’s credibility. So disregard any mention of any profession of any
witness mentioned by the State.
Defense counsel did not object to the wording of the court’s instruction.
{¶ 30} The trial court did not abuse its discretion in denying the motion for a
mistrial due to the mentioning of Stockton’s name and place of employment. Stockton was
listed after 20 law enforcement officers and prior to several employees of the Montgomery
County Crime Lab. There was no mention of Stockton’s position with the Greene County
Probation Department, Stockton’s relationship to Nelson, if any, or the nature of his
anticipated testimony at trial. It is speculative whether any of the prospective jurors would
have believed that Nelson had a prior record based solely on Stockton’s place of
employment. The judge’s curative instruction did not mention a prior conviction or
suggestion that Nelson was on probation at the time of the offenses. To the extent that any
instruction was necessary, the court told the jurors to disregard the witnesses’ profession and
not use the profession to assess credibility. We find no basis to conclude that the jury
assumed that Nelson was on probation and was biased against him.
{¶ 31} Nelson’s second motion for a mistrial was made after Juror #19 responded to
a question by the prosecutor regarding the presumption of innocence. After explaining that
Nelson was presumed innocent and that the State had not yet presented any evidence in the
case, the prosecutor asked Juror #19, “if this is all you heard, and you had to vote, what
would your vote be as to guilty or not guilty.” The juror replied: “This is a matter of
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percentages. You asked us to come in at 50/50. And the very fact that we’re here, and the
very fact that the grand jury has done its job makes me essentially tend toward the
hypothesis of guilty. * * * I have to tend that way.”
{¶ 32} The State explained that the judge would instruct that Nelson is presumed
innocent, and it asked the juror if he would have any problem voting right now that Nelson
was innocent because there was no evidence yet. Juror #19 responded that his biases would
be there, “but we can be logical” to overcome these biases. The State then asked another
prospective juror how she felt “about the presumption of innocence, that as the Defendant
sits here now, he’s innocent;” she responded that she believed that Nelson was innocent.
The prosecutor asked if anyone had other views; it appears there was no response. (Juror
#19 was ultimately excused for cause.)
{¶ 33} Nelson did not immediately object to this exchange. Prior to beginning his
voir dire, defense counsel moved for a mistrial based on the Juror #19’s comment that the
grand jury had done its job. Nelson argued that the response altered the burden of proof for
the entire panel. The court denied the motion, indicating that its instructions would address
that issue, i.e., the presumption of innocence, and defense counsel could inquire into that
matter during his voir dire examination.
{¶ 34} “The Sixth Amendment to the United States Constitution guarantees a
defendant the right to a trial by fair and impartial jurors. In order to protect this
fundamental right, the court conducts voir dire with the purpose of empaneling a fair and
impartial jury, free from prejudice or bias.” (Citations omitted.) State v. Oliver, 11th Dist.
Portage No. 2010-P-17, 2012-Ohio-122, ¶ 37.
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{¶ 35} In our view, the trial court did not abuse its discretion in denying Nelson’s
motion for a mistrial. At the beginning of the jury selection process (prior to the offending
statement by Juror #19), the trial court gave preliminary instructions, including an
instruction that an indictment “is not proof of anything” and that it merely informs the
defendant of the charges against him. The court further instructed: “The Defendant is
presumed innocent unless and until the State has offered sufficient evidence to convince you
beyond a reasonable doubt the existence of each and every element of the offense charged.
The Defendant does not have a burden of proof. He does not have to prove anything.”
(These instructions were repeated following closing arguments.) One of the purposes of
voir dire examination was to determine whether any of the prospective jurors would be
unable to follow the court’s instruction.
{¶ 36} After hearing the Juror #19’s statement regarding the grand jury and the
presumption of innocence, the prosecutor immediately indicated that the prospective juror’s
view was not correct under the law. The prosecutor addressed the issue with the other
jurors, emphasizing that Nelson was, at that time, presumed innocent. The prosecutor made
sure that the other prospective jurors agreed with that view. Defense counsel also
questioned the prospective jurors about the presumption of innocence and burden of proof,
and the answers to his questions reflected that the prospective jurors understood those
concepts.
{¶ 37} Given the court’s instructions, the prosecutor’s prompt and clear correction
of the Juror #19’s misstatement regarding the presumption of innocence, and defense
counsel’s inquiry on that subject during voir dire, the trial court reasonably concluded that
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the jury pool had not been tainted and that Nelson could receive a fair trial.
{¶ 38} The first assignment of error is overruled.
IV.
{¶ 39} Nelson’s second assignment of error states:
THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL
COURT ERRED IN FAILING TO EXCLUDE EVIDENCE DISCLOSED
TO DEFENDANT DURING TRIAL.
{¶ 40} In his second assignment of error, Nelson claims that the trial court erred in
failing to exclude the testimony of Nichols and Velez.
{¶ 41} At a pretrial conference on Friday, January 20, 2012, the State notified the
defense that Nelson’s four co-defendants had entered pleas in the case. The State reiterated
a plea offer to Nelson, which Nelson declined. The State further indicated that it “received
word just this afternoon that [Nichols was] willing to cooperate in the case against Mr.
Nelson. We have also received some notice from her attorney that there are some letters
that Mr. Nelson wrote, which might be beneficial to the Defense.” The State said that it
would turn over copies of the letter when they came into the State’s possession and that the
State would try to visit Nichols at the jail that afternoon. Defense counsel stated that he
might object to the new information being used due to the short notice. The prosecution
responded that it was not trying to withhold evidence; “[i]t’s just something that we
would’ve gotten at the last minute.” (The State had interviewed Velez on January 19, the
previous day.)
{¶ 42} Detective Ridgeway and the prosecutor interviewed Nichols on January 20.
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At her interview, Nichols provided the State a copy of the letter from Nelson to Nichols.
On Sunday, January 22, Ridgeway gave the prosecutor a supplemental report that he
prepared based on the interviews with Velez and Nichols. The prosecutor faxed the
supplemental report and letter to defense counsel during the afternoon of January 22. The
prosecutor notified defense counsel to let him know the information had been faxed to his
office.
{¶ 43} Nelson’s trial began on Monday morning (January 23). At some point,
defense counsel informed the prosecutor that he had received only two of the 15 faxed
pages. After court adjourned around 4:00 p.m., the State provided defense counsel an
additional copy of all 15 pages.
{¶ 44} Nichols and Velez were scheduled to testify on Tuesday, January 24.
Before trial resumed that day, the State informed the court about the discovery it had
received, its attempt to provide that discovery by fax on January 22, and the fact that defense
counsel received all of the supplemental discovery at the end of court on the previous day.
Defense counsel then asked the court to exclude Nichols and Velez from testifying. He
argued that the supplemental materials “amplified their testimony quite a bit,” that the
discovery was not timely, and that he did not have ample time to prepare. Upon inquiry
from the court, the State indicated that it did not intend to use the letter from Nichols and it
emphasized that the supplemental report was not completed until January 22. The trial
court overruled Nelson’s request to have Nichols’s and Velez’s testimony excluded.
{¶ 45} The admission or exclusion of evidence is left to the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of that discretion. State v.
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Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).
{¶ 46} Given the circumstances of this case, the trial court did not abuse its
discretion in allowing Nichols and Velez to testify. On the Friday prior to trial, defense
counsel was informed that Nelson’s co-defendants had recently entered pleas and that the
State would be obtaining supplemental information from Nelson’s co-defendants. The
interviews with Nichols and Velez occurred after their pleas; the State could not have
disclosed the supplemental report prior to January 22, when it was completed by Detective
Ridgeway based on those interviews. Nelson’s counsel indicated that he “absorbed” the
materials provided by the State before Nichols and Velez testified, and counsel could and
did thoroughly cross-examine those witnesses.
{¶ 47} Even if a discovery violation had occurred, and we do not find that one did,
Crim.R. 16(L)(1), formerly Crim.R. 16(E)(3), allows the trial court to grant a continuance, as
opposed to prohibiting the party from introducing the evidence that was not disclosed. “It
is within the trial court's discretion to decide what sanction to impose for a discovery
violation. A trial court should impose the least severe sanction for a discovery violation
that is consistent with the purposes of the rules of discovery. A continuance, upon proper
motion, is a favored method to avoid prejudice that may flow from a failure to provide
discovery yet ensure that the charges against an accused are tried timely and fairly.”
(Citations omitted.) State v. Bates, 191 Ohio App.3d 85, 2010-Ohio-5636, 944 N.E.2d
1206, ¶ 11 (2d Dist.).
{¶ 48} Nelson’s counsel did not request a continuance due to the alleged discovery
violation, and he indicated that he had reviewed the State’s supplemental materials.
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Although the prosecutor waited two days to provide the letter to Nelson, Nelson was not
prejudiced by the brief delay, particularly since the State did not use that evidence at trial.
The trial court reasonably permitted the State to offer Nichols’s and Velez’s testimony at
trial.
{¶ 49} The second assignment of error is overruled.
V.
{¶ 50} Nelson’s third assignment of error states:
THE TRIAL COURT ERRED IN OVERRULING MR. NELSON’S
MOTION TO STRIKE FIREARM SPECIFICATION AND MOTION FOR
GRAND JURY TRANSCRIPTS.
{¶ 51} In his third assignment of error, Nelson claims that the trial court erred in
denying his motion to strike the firearm specifications, which were added upon reindictment
after Nelson declined to enter a plea. Nelson asserted that the government’s actions
constituted vindictive prosecution, and he requested the grand jury transcripts in order to
support his claim that the specifications could have been included in the original indictment.
{¶ 52} According to defense counsel, Nelson and the State engaged in repeated and
prolonged plea negotiations. During the course of those negotiations, the State advised
defense counsel that “if [Nelson] did not plead guilty to aggravated robbery and possession
of a weapon while under disability the State would return to the grand jury and seek firearm
specification[s] to the instant charges.” On December 30, 2011, Nelson was reindicted on
the same charges; the new indictment added three firearm specifications.
{¶ 53} Prior to trial, Nelson moved to dismiss the specifications based on
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vindictive prosecution. In response to Nelson’s motion, the prosecutor informed the court
that she was “not the original prosecutor who was assigned this case” and that she believed
“that the additional firearm specifications were appropriate in this case and I did add those
once I was assigned the case.” The trial court denied the motion.
{¶ 54} “[I]t is not prosecutorial misconduct to threaten a defendant, in order to
induce him to plead guilty to the offenses with which he has been charged, with the
institution of more serious charges for which the State has substantial evidence.” State v.
Myrick, 2d Dist. Greene No. 96-CA-149, 1998 WL 57794, *3 (Feb. 13, 1998). As we
stated in Myrick:
We cannot distinguish the State’s conduct in threatening to charge a
greater offense, for which it had substantial evidentiary support, from
charging that greater offense initially and then offering to reduce it. In fact,
if we were to hold that a prosecutor must first formally institute the strongest
possible charges for which it has evidence, before it may offer to allow a
defendant to plead guilty to lesser charges, that might unduly and
unnecessarily complicate the plea bargaining process. We can understand
that the prosecutor might find it more difficult, politically, to reduce * * * a
charge that has already been instituted in exchange for a plea to a lesser
charge, rather than to accept a plea to a lesser charge before the greater charge
has been formally instituted.
As long as a prosecutor has a good-faith basis for charging a greater
offense, we see no reason to preclude the prosecutor from offering to forego
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the greater charge in exchange for a plea to a lesser charge, even if the lesser
charge is the only charge formally pending.
Myrick at *3. See also State v. Perkins, 191 Ohio App.3d 263, 2010-Ohio-5161, 945
N.E.2d 1083 (2d Dist.).
{¶ 55} We have further noted that a defendant is protected from prosecutorial
vindictiveness in the pre-trial setting by the grand jury system. Perkins at ¶ 40. “The grand
jury's historic functions survive to this day. Its responsibilities continue to include both the
determination whether there is probable cause to believe a crime has been committed and the
protection of citizens against unfounded criminal prosecutions. * * * The scope of the grand
jury’s powers reflects its special role in insuring fair and effective law enforcement.”
(Citation omitted.) United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38
L.Ed.2d 561 (1974).
{¶ 56} Nelson has not argued that the facts of his case did not warrant firearm
specifications, and it is apparent from the circumstances that those specifications were
reasonable. All of the charges against Nelson were based on an allegation that Nelson had a
firearm during the commission of the offenses, and the evidence at trial reflected that Nelson
displayed a gun during the theft of Wheeler’s money and then shot at Wheeler from a vehicle
while Wheeler pursued Nelson and his associates in his own vehicle. The State could have
reasonably pursued the firearm specifications in its original indictment, and it informed
Nelson that it would add the specifications if he failed to enter a plea. Nelson made an
informed choice not to plead to the charges. We therefore conclude that Nelson was not
subject to unfounded or vindictive prosecution when the State reindicted him following the
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breakdown of the plea negotiations.
{¶ 57} In addition, the trial court did not err in denying Nelson’s request for the
grand jury transcript, as that request was based solely on Nelson’s desire to establish that the
firearm specifications could have been included in the original indictment, a fact which is
not disputed.
{¶ 58} The third assignment of error is overruled.
VI.
{¶ 59} Nelson’s fourth assignment of error states:
MR. NELSON’S TWENTY YEAR PRISON SENTENCE IS CLEARLY
AND CONVINCINGLY CONTRARY TO THE LAW AND AN ABUSE OF
THE TRIAL COURT’S DISCRETION.
{¶ 60} Nelson’s fourth assignment of error challenges his aggregate 20-year prison
sentence. He claims that his sentence is contrary to law and an abuse of discretion.
{¶ 61} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.
{¶ 62} The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
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reasons for imposing maximum or more than minimum sentences. See State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, ¶ 37. In addition, under 2011 Am.Sub.H.B. 86, the trial court is obligated to make the
findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences. The trial
court is also required to merge allied offenses of similar import before imposing sentence
under R.C. 2941.25(A), State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, and to properly impose any other penalties required by law. E.g., State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 (post-release control); State v. Harris, 132
Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509 (driver’s license suspension).
{¶ 63} As stated above, Nelson was convicted of aggravated robbery, a first degree
felony; felonious assault, a second degree felony; discharging a firearm on or near a
prohibited premises, a second degree felony; and having a weapon while under disability, a
third degree felony. Three of the charges had firearm specifications, which, by statute, must
run prior to and consecutively to the sentences for the underlying felonies. R.C.
2929.14(C)(1)(a). The discharging a firearm on or near a prohibited premises charge was
merged into the felonious assault charge, and the court sentenced Nelson to seven years for
the aggravated robbery, plus three years for the firearm specification, and to seven years for
the felonious assault, plus three years for that firearm specification. The court found that
the two offenses were committed with a separate animus, and it ordered the sentences to run
consecutively to each other, for a total of 20 years. The court imposed a 36-month sentence
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for having a weapon while under disability, to be served concurrently with the other two
sentences. All of the sentences were within the statutory range, and neither sentence for
aggravated robbery and felonious assault was a maximum sentence.
{¶ 64} During the sentencing hearing, the trial court indicated that it had
considered the purposes and principles of sentencing under R.C. 2929.11 and the seriousness
and recidivism factors in R.C. 2929.12. The court found that consecutive sentences were
necessary to protect the public from further crime and to “necessarily punish [Nelson’s]
behavior.” The court further found that consecutive sentences were not disproportionate to
the seriousness of Nelson’s conduct and the danger that he posed to the public. The court
told Nelson that “at least two of the multiple offenses were committed as part of one or more
course of conduct and the harm caused by two or more of the multiple offenses was so great
and unusual that no single prison term can adequately reflect [the] seriousness of your
conduct and further that your history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by yourself.” The trial court
thus complied with its obligation to consider the statutory factors set forth in R.C. 2929.11
and R.C. 2929.12 and to make the findings required by R.C. 2929.14(C)(4) before imposing
consecutive sentences.
{¶ 65} Nelson’s counsel asked the trial court to merge the felonious assault and
aggravated robbery charges, arguing that “if there was a gun pulled and a shot fired, it was
all part of either conducting the robbery or fleeing from the robbery. Not really a separate
act.” R.C. 2941.25, which addresses the issue of merger, provides:
(A) Where the same conduct by defendant can be construed to
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constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may
be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as to
each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶ 66} “When determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at
syllabus. The Ohio Supreme Court explained:
Under R.C. 2941.25, the court must determine prior to sentencing whether the
offenses were committed by the same conduct. Thus, the court need not
perform any hypothetical or abstract comparison of the offenses at issue in
order to conclude that the offenses are subject to merger.
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. * * * If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
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offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.” * * *
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each
offense, then, according to R.C. 2941.25(B), the offenses will not merge.
(Citations and quotations omitted.) Johnson at ¶ 47–51. {¶ 67 } A defendant who
argues on appeal that the trial court erred by not merging multiple offenses bears the burden
to show that the offenses are allied pursuant to R.C. 2941.25. State v. Hale, 2d Dist. Clark
No. 11 CA 33, 2012-Ohio-2662, ¶ 24.
{¶ 68} The trial court found that the felonious assault and aggravated robbery
charges were committed with a separate animus, and thus they did not merge as allied
offenses of similar import. Under the facts of this case, we agree with the trial court’s
conclusion that a separate animus existed and that the two offenses did not merge. In short,
the record reflects that Nelson’s sentences for his offenses and specifications were not
contrary to law.
{¶ 69} Nelson claims that, even if the trial court complied with all applicable rules
and statutes, his 20-year sentence amounts to an abuse of discretion. In general, an abuse of
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discretion occurs when the trial court’s decision is grossly unreasonable, unsound, illegal, or
unsupported by the evidence. State v. Robinson, 2d Dist. Champaign No. 2012 CA 17,
2012-Ohio-4976, ¶ 17. In the sentencing context, a trial court ordinarily does not abuse its
discretion when it imposes a sentence within the range permitted by the applicable statute.
Id., citing State v. Bailum, 2d Dist. Clark No. 2007 CA 55, 2008-Ohio-2999, ¶ 5.
{¶ 70} At sentencing, the trial court indicated that it had carefully reviewed the
presentence investigation report and the written statements from Nelson’s attorney, the State,
Nelson, and Nelson’s father. A victim impact statement was read to the court on behalf of
Wheeler, in which Wheeler expressed that he had “attempted to help someone I understood
to be a friend” and that he discovered that it was all an “elaborate setup to point a gun in my
face and rob me of what I was attempting to give.” Wheeler reiterated how Nelson had shot
at him to “protect the $100 profit they had,” and he expressed dismay that his life was
apparently worth only $100 to Nelson. Wheeler requested a maximum sentence.
{¶ 71} Defense counsel argued on Nelson’s behalf that Nelson had acted as an
accomplice to the robbery and that “the spirit of what occurred is really one act.” Counsel
acknowledged that Nelson had “a pretty besmirched record,” but he argued that Nelson was
still young and that a moderate sentence would allow him to be rehabilitated and have a life.
Counsel requested concurrent sentences on all of the charges.
{¶ 72} Speaking on his own behalf, Nelson expressed remorse that he went with his
co-defendants on October 11, but he repeatedly challenged the evidence against him,
including Wheeler’s credibility and the evidence that he possessed and fired a gun. Nelson
concluded:
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* * * I’m not going to sit here and say I don’t want you to take me away from
my family and my kids. Yeah, I got kids. I got family, they’re all here you
know what I mean. But the guy didn’t get hurt. He got his money back, he
didn’t get no damage to his car. That whole I tried to take his life, come on,
man.
{¶ 73} Nelson’s presentence investigation revealed that Nelson was 25 years old,
and had three prior misdemeanor convictions and five prior felony convictions (burglary,
theft, grand theft, receiving stolen property, and complicity to disrupt public services), four
of which resulted in prison sentences. Nelson was last released from prison in December
2010. Nelson denied committing the instant offenses and claimed he was “just a passenger
in the car.” He told the investigator that the witnesses lied about his involvement in the
offenses and said, “Honestly, who is the victim here? A guy who hired a prostitute who
stole his money, or the person who the victim lied on?”
{¶ 74} In sentencing Nelson to 20 years, the trial court emphasized Nelson’s lack of
responsibility for his involvement in the offenses, that Nelson decided to purchase the gun
immediately prior to the offense, that Nelson decided to brandish it during the theft and then
fire it at Wheeler’s car, and that “it is only out of luck or the grace of God that we’re not here
for someone being seriously injured or killed in this case.” The court further noted that
Nelson was released from prison less than one year before the commission of these offenses
and that the crimes that he had committed were “escalating.”
{¶ 75} The sentence that Nelson received was certainly severe. However, we
conclude that Nelson’s lack of remorse, his felony record and history of incarceration, and
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his use of a firearm for two separate offenses on the same night justified the trial court’s
imposition of consecutive sentences and that the aggregate sentence of 20 years was not an
abuse of discretion.
{¶ 76} Nelson’s fourth assignment of error is overruled.
VII.
{¶ 77} Nelson’s fifth assignment of error reads:
MR. NELSON WAS DEPRIVED OF A FAIR TRIAL DUE TO
CUMULATIVE TRIAL ERRORS.
{¶ 78} In his fifth assignment of error, Nelson claims that all of the alleged errors
at trial cumulatively resulted in prejudicial error, warranting a reversal of his conviction and
a new trial.
{¶ 79} The Supreme Court of Ohio has stated that numerous harmless errors may
cumulatively deprive a defendant of a fair trial and thus may warrant the reversal of his
conviction. (Emphasis added.) State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623
(1995). The doctrine of cumulative error does not apply in this case because Nelson has not
identified multiple instances of harmless error. Id.
{¶ 80} Nelson’s fifth assignment of error is overruled.
VIII.
{¶ 81} The trial court’s judgment will be affirmed.
..........
GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
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R. Lynn Nothstine
Lori R. Cicero
Hon. Dennis J. Adkins