[Cite as State v. Pruitt, 2012-Ohio-5418.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98080
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENVER A. PRUITT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-552756
BEFORE: E. Gallagher, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 21, 2012
ATTORNEY FOR APPELLANT
Stephen L. Miles
20800 Center Ridge Road
Suite 211
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Nathaniel Tosi
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Denver Pruitt appeals his conviction and the sentence entered in the
Cuyahoga County Court of Common Pleas. Pruitt argues that the trial court erred in
admitting phone-call recordings that were not authenticated, that his convictions were
against the manifest weight of the evidence and that his sentence was improperly
imposed. Finding no merit to the instant appeal, we affirm the judgment of the trial
court.
{¶2} On July 22, 2011, Denver Pruitt and Eugene Nelson went to Advance Iron
and Metal located at 7007 Quincy Road in Cleveland, Ohio, to sell a small amount of
scrap metal. Pruitt and Nelson spoke with Gary Gross, the owner of the yard. Gross
later testified that he did not know these two men, but stated that he was immediately
suspicious because they arrived to sell six to seven pounds of metal, which was worth
less than one dollar. Gross stated that he requires valid identification from anyone
selling scrap metal and that he carries a .357 magnum revolver on his person at all times.
{¶3} Gross testified that he began walking towards his office but maintained
visual contact with Pruitt and Nelson. Gross stated that as he used a remote buzzer to
unlock the office door, Pruitt and Nelson pushed both him and employee, Oscar Woods,
into the office. Gross testified that Pruitt, whom he identified by clothing and at a later
cold-stand line up, held a gun up to his head. Gross tried to push the gun away while
simultaneously pulling out his own gun from his front pants pocket. During the
struggle, Pruitt’s gun discharged, grazing the side of Gross’ stomach and leaving a hole
in his shirt. Gross testified that Pruitt backed out of the doorway and fled. Gross stated
that he shot towards the bullet-proof glass to make sure Pruitt left and did not return.
{¶4} Gross stated that as Pruitt fled, Nelson jumped on top of him and the two
began fighting. Gross discharged his weapon two more times, striking Nelson in the
elbow and back. Nelson fled the area and Gross, Woods and a third worker, Donny
Mitchell, chased after Nelson and Pruitt. Gross stated that he could see Nelson limping
down the street and could also see Pruitt two blocks away, at East 69th Street and Quincy
Avenue. While Gross, Woods and Mitchell were standing on the sidewalk, Pruitt raised
his handgun and fired at the three males.
{¶5} In response to the gunshots, numerous witnesses contacted 911. Police
officers responded and arrested Nelson as he was heading towards his vehicle and the
officers transported Nelson for treatment of his gunshot wounds. Officers also arrested
Pruitt, who attempted to identify himself as a worker at a nearby warehouse. Officers
brought Pruitt back to Advance Iron and Metal where Gross and Woods identified him as
the shooter.
{¶6} On August 1, 2011, a Cuyahoga County Grand Jury indicted Pruitt on
four counts of aggravated robbery with one- and three-year firearm specifications, one
count of kidnapping with one- and three-year firearm specifications, five counts of
felonious assault with one- and three-year firearm specifications and one count of having
weapons while under disability. Pruitt elected to proceed to a jury trial. During trial,
the state presented the testimony of victims Gary Gross, Oscar Woods and Donny
Mitchell, the responding and arresting officers, recordings of the 911 calls regarding the
incident, a recorded Cuyahoga County jail telephone conversation between Pruitt and an
unknown female and the testimony of codefendant Nelson. Gross, Woods, Mitchell and
Nelson all identified Pruitt as the man who shot at the victims during the robbery at
Advanced Iron and Metal. Pruitt presented no witness testimony but argued that Nelson
was the shooter. Prior to submitting the case to the jury, the state dismissed Count 9,
one of the five charges of felonious assault; the court renumbered the remaining counts
accordingly.
{¶7} On February 6, 2012, the jury returned a verdict of guilty to aggravated
robbery with one- and three-year firearm specifications as charged in Counts 1-4,
kidnapping with one- and three-year firearm specifications as charged in Count 5,
felonious assault with one- and three-year firearm specifications as charged in Counts
6-9 and having weapons while under disability as charged in Count 10. The state
elected to proceed on Counts 1 and 8 and the court merged all firearm specifications as
well as Counts 1-7 and 9 for purposes of sentencing. On February 28, 2012, the trial
court sentenced Pruitt to nine years on the charge of aggravated robbery, three years on
the firearm specification, four years on the charge of felonious assault and one year on
the charge of having weapons while under disability. The court ordered all sentences to
run consecutive to one another except for the one-year sentence for the charge of having
weapons while under disability, for a total prison term of 16 years.
{¶8} Pruitt appeals, raising the following four assignments of error for review.
Assignment of Error I
The trial court erred by admitting into evidence recordings of jailhouse
phone calls.
Assignment of Error II
The convictions for Aggravated robbery, Felonious assault and Having A
Weapon While Under Disability were against the manifest weight of the
evidence.
Assignment of Error III
The trial court erred by sentencing the appellant to a disproportionate
sentence compared to similarly situated offenders.
Assignment of Error IV
The trial court erred by sentencing the appellant to consecutive sentences.
{¶9} In Pruitt’s first assignment of error, he argues that the trial court erred in
admitting the recording of a jailhouse phone call. In the state’s case-in-chief, the state
played a recording of a jailhouse telephone conversation between a female and the
defendant discussing the female’s attempts to prevent a victim witness from testifying.
Pruitt argues that the state never authenticated the phone call and thus, it was an error for
the court to play the recording. Pruitt’s argument lacks merit.
{¶10} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Hamilton, 8th Dist. No. 86520, 2006-Ohio-1949.
The applicable standard of review for questions regarding the admission of
evidence is an abuse of discretion. State v. Soke (1995), 105 Ohio
App.3d 226, 249, 663 N.E.2d 986. An abuse of discretion connotes more
than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62
Ohio St.2d 151, 157, 404 N.E.2d 144. Hamilton.
{¶11} Evid.R. 901 governs authentication and provides a liberal standard for the
authentication of telephone calls. State v. Teague, 8th Dist. No. 90801, 2009-Ohio-129.
Pursuant to Evid.R. 901(A), the requirement of authentication for evidence to be
admissible “is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” “Telephone conversations are admitted where
the identity of the parties is satisfactorily explained.” State v. Williams, 64 Ohio App.2d
271, 274, 413 N.E.2d 1212 (8th Dist.1979).
Testimony as to a telephone call is admissible where there is a reasonable
showing, through testimony or other evidence, that the witness placed or
received a call as alleged, plus some indication of the identity of the person
spoken to. There is no fixed identification requirement for all calls. * * *
“Each case has its own set of facts.” (Citations omitted.)
State v. Vrona, 47 Ohio App.3d 145, 149, 547 N.E.2d 1189 (9th Dist.1988).
Circumstantial evidence, as well as direct, may be used to show
authenticity. Moreover, the threshold standard for authenticating evidence
pursuant to Evid.R. 901(A) is low, and “does not require conclusive proof
of authenticity, but only sufficient foundational evidence for the trier of
fact to conclude that * * * [the evidence] is what its proponent claims it to
be.” (Internal citations omitted.)
Teague.
{¶12} In the present case, Sergeant Phillip Christopher testified that jail phone
calls are made and recorded using a system called Global Telelink. Sgt. Christopher
stated that when an inmate makes either a collect call or a prepaid call, they pick up one
of the telephone receivers inside the housing unit, are directed to input their inmate PIN,
a unique number to each inmate, and then dial the phone number to which they are
placing their call. Sgt. Christopher stated that this information is recorded by the Global
Telelink system. Sgt. Christopher further explained that the system generates a call log
that details the number called, the PIN used and the date and time. He then identified
state’s exhibit No. 10 as a call log associated with PIN 23537, which was assigned to
Pruitt, and then identified and associated the recorded jail call with state’s exhibit No.
10. On cross-examination, Sgt. Christopher admitted that inmates have been known to
share their PIN numbers with other inmates.
{¶13} Although Sgt. Christopher admitted that inmates do share their PIN
numbers, the content of the recording confirms the identity of the caller. In the
recording, the caller is speaking to a female he identifies as his girlfriend. This female
states that she went to the scrapyard to offer money to get a witness not to testify. The
female stated that the witness was uncooperative even after she offered money because
the individuals had tried to kill him. This conversation mirrors the facts of the present
case. Pruitt stops short of claiming that it was not his voice on the recording; he merely
argues that the state failed to authenticate the recording and, thus, the court committed
error in admitting it into evidence.
{¶14} The testimonial evidence from Sgt. Christopher as well as the content of
the recording itself is sufficient to conclude that it was Pruitt’s voice captured by the
recording. The trial court did not abuse its discretion in admitting the recorded
conversation.
{¶15} Pruitt’s first assignment of error is overruled.
{¶16} In his second assignment of error, Pruitt argues that his convictions for
aggravated robbery, felonious assault and having weapons while under disability are
against the manifest weight of the evidence.1 We disagree.
{¶17} In evaluating a challenge based on manifest weight of the evidence,
a court sits as the thirteenth juror, and intrudes its judgment into
proceedings that it finds to be fatally flawed through misrepresentation or
misapplication of the evidence by a jury that has “lost its way.” State v.
Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the
Ohio Supreme Court declared: Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It indicates clearly to
the jury that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.”
* * * The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction. (Internal
citations omitted.)
Id. at 387.
{¶18} This court is mindful that weight of the evidence and the credibility of
witnesses are primarily for the trier of fact and a reviewing court must not reverse a
verdict where the trier of fact could reasonably conclude from substantial evidence that
1
Pruitt does not allege that his conviction for kidnapping or that his
conviction for the attached one- and three-year firearm specifications on the
multiple charges of aggravated robbery and felonious assault are against the
manifest weight of the evidence. Our analysis of Pruitt’s second assignment of
the state has proven the offense beyond a reasonable doubt. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), at paragraphs one and two of the syllabus. The goal
of the reviewing court is to determine whether a new trial is mandated. A reviewing
court should only grant a new trial in the “exceptional case in which the evidence weighs
heavily against a conviction.” (Internal citation omitted.) State v. Lindsey, 87 Ohio
St.3d 479, 2000-Ohio-465, 721 N.E.2d 995.
{¶19} In support of his argument, Pruitt claims the following: that it was his
codefendant Eugene Nelson’s idea to commit the robbery and that Nelson possessed the
gun at the scrapyard; that Nelson’s credibility is lacking because of his lengthy prior
record; that the investigating officers found no bullet casings in the office of the
scrapyard, nor did they recover a firearm or gunshot residue from Pruitt; and that the
testimony of victims Gross, Woods and Mitchell was conflicting.
{¶20} In reviewing the entire record, we cannot say that the trier of fact lost its
way in finding Pruitt guilty of four counts of aggravated robbery, four counts of
felonious assault and one count of having weapons under disability. In addition to other
witnesses, the state presented the testimony of Gross, Woods, Mitchell and Eugene
Nelson, who were on-site when Pruitt committed these crimes. The witnesses all
identified Pruitt as the individual holding the gun as well as the person who shot at them
down Quincy Avenue. Each witness described Pruitt’s clothing on the day of the
shooting and each witness identified Pruitt in court as the man who committed the
error will therefore be limited.
crimes. Additionally, the state presented the recordings of 911 calls from anonymous
callers. The callers described the gunman’s clothing, which matched the description
given by Gross, Woods, Mitchell and Nelson.
{¶21} The state also presented testimony from investigators who explained that
gunshot residue is not always found on a person and the lack of residue does not mean
that the person did not fire a weapon.
{¶22} Although Pruitt argues that his version of events should have been relied
upon by the trial court, the trier of fact is in the best position to weigh the evidence and
the credibility of witnesses. As the reviewing court, we find that the trier of fact could
reasonably conclude from the substantial evidence presented by the state that the state
has proven the offenses beyond a reasonable doubt. Accordingly, we cannot find that
the trier of fact lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed and a new trial ordered.
{¶23} Pruitt’s second assignment of error is overruled.
{¶24} In his third and fourth assignments of error, Pruitt argues the trial court
erred when it sentenced him to a 16-year term of imprisonment. Specifically, Pruitt
argues that his sentence is disproportionate to other similarly situated offenders and that
the trial court failed to make the required findings to sentence him to a consecutive term.
Pruitt’s arguments lack merit.
{¶25} Pruitt argues that his sentence is disproportionate because while he received
a 16-year term of imprisonment, his codefendant received only a six-year sentence. We
disagree.
{¶26} R.C. 2929.11(B) states that a felony sentence must be “consistent with
sentences imposed for similar crimes committed by similar offenders.” However, the
goal of felony sentencing is to achieve “consistency” not “uniformity.” See State v.
Marshall, 8th Dist. No. 89551, 2008-Ohio-1632; State v. Klepatzki, 8th Dist. No. 81676,
2003-Ohio-1529; State v. Richards, 8th Dist. No. 83696, 2004-Ohio-4633; State v.
Harris, 8th Dist. No. 83288, 2004-Ohio-2854; State v. Dawson, 8th Dist. No. 86417,
2006-Ohio-1083 (although an offense may be similar, distinguishing factors may justify
dissimilar treatment); State v. Nelson, 11th Dist. No. 2008-L-072, 2008-Ohio-5535 (no
requirement that codefendants receive equal sentences).
{¶27} Although both Pruitt and Nelson were initially indicted on identical
charges, Nelson pleaded guilty to only one count of aggravated robbery with a one-year
firearm specification. The court dismissed the remaining charges against Nelson.
Pruitt, on the other hand, was found guilty of four counts of aggravated robbery with
one- and three-year firearm specifications, one count of kidnapping with one- and
three-year firearm specifications, four counts of felonious assault with one- and
three-year firearm specifications and one count of having weapons while under
disability. Additionally, the state’s witnesses all identified Pruitt, not Nelson, as the
individual holding and firing a weapon on July 22, 2011.
{¶28} As discussed in detail below, the trial court followed the sentencing
guidelines and considered all relevant factors when sentencing Pruitt.
{¶29} This court recently analyzed a trial court’s requirements for imposing
consecutive sentences and found as follows:
House Bill 86, which became effective on September 30, 2011, revived the
language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under H.B.
86 now require a trial court to make specific findings when imposing
consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part: If
multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
“(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under postrelease control for a prior offense.
“(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
“(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.”
In Section 11 of House Bill 86, the legislature explained that in amending
former R.C. 2929.14(E)(4), it intended “to simultaneously repeal and
revive the amended language in those divisions that was invalidated and
severed by the Ohio Supreme Court’s decision in State v. Foster (2006),
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.” The General
Assembly further explained that the amended language in those divisions
“is subject to reenactment under the United States Supreme Court’s
decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed.
2d 517, and the Ohio Supreme Court’s decision in State v. Hodge (2010),
128 Ohio St. 3d 1, 941 N.E.2d 768, Slip Opinion No. 2010 Ohio 6320.”
Thus, it is the legislature’s intent that courts interpret the language in R.C.
2929.14(C)(4) in the same manner as the courts did prior to State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
Under R.C. 2929.14(C)(4), the trial court must state its findings in support
of consecutive sentences on the record at the sentencing hearing. State v.
Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, paragraph
one of the syllabus. However, it is not required to recite any “magic” or
“talismanic” words when imposing consecutive sentences provided it is
“clear from the record that the trial court engaged in the appropriate
analysis.” State v. Murrin, 8th Dist. No. 83714, 2004 Ohio 3962, ¶12.
An appellate court may only sustain an assignment of error challenging the
imposition of consecutive sentences under R.C. 2929.14 if the appellant
shows that the judgment was clearly and convincingly contrary to law.
R.C. 2953.08(G).
State v. Davis, 8th Dist. Nos. 97689, 97691 and 97692, 2012-Ohio-3951.
{¶30} The trial court articulated the appropriate findings required by R.C.
2929.14(C)(4), both on the record at the sentencing hearing and in the judgment entry of
conviction and sentence. At the sentencing hearing, the court recounted Pruitt’s
extensive criminal history that dated back to juvenile adjudications beginning in 1991.
The court also commented on the harm he caused his victims.
{¶31} Our review of the transcript reveals that the trial court considered not only
the impact of Pruitt’s actions on the victims of the present case, but also the fact that
prior attempts at rehabilitation had been unsuccessful. The court found that the
seriousness of the crimes coupled with Pruitt’s failure to be rehabilitated required a
longer term of incarceration to punish him and to protect the public from future crime.
See also Davis; State v. Parrish, 8th Dist. No. 97482, 2012-Ohio-3153.
{¶32} We find the trial court made the necessary findings to impose consecutive
sentences.
{¶33} Pruitt’s third and fourth assignments of error are overruled.
{¶34} The judgment of the trial court is affirmed.
It is ordered that appellee recover from 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 conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR