State v. Moore

[Cite as State v. Moore, 2012-Ohio-1958.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95106

STATE OF OHIO
PLAINTIFF-APPELLEE
vs.

JOHN MOORE, JR.

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-392440

BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: May 3, 2012
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ATTORNEY FOR APPELLANT

Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103-1125

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, John Moore, Jr., appeals from his convictions and the sentence

imposed after his retrial on charges of aggravated robbery and kidnapping with firearm

specifications. After a careful review of the record and relevant case law, we affirm in

part and reverse and remand in part.1

{¶2} This court originally reviewed the circumstances that led to appellant’s

convictions in State v. Moore, 8th Dist. No. 78751, 2002-Ohio-1831 (“Moore I”). The

state presented evidence at jury trial alleging that appellant and his accomplice, Lamar

Chaney, gained entrance to the Hard Rock Cafe in Cleveland on May 21, 2000. Once

inside, the men entered the inner office and ordered manager Tammi Minoski to open the

restaurant’s safe. Minoski testified that one of the men, later identified as Chaney, held a

“shiny gun” to her head as she emptied the safe. While Minoski was putting the money

into appellant’s duffel bag, Chaney took Hard Rock Cafe employee Lexi Halitsky into the

office and tied her up with duct tape. When Minoski finished with the safe, appellant tied

her up with duct tape and placed her in the office with Halitsky. Once Minoski and

1Judge Celebrezze is writing for the majority on assignments of error 1
through 14 inclusive. Judge Rocco is writing for the majority on assignment of error
15.
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Halitsky were secured in the office, the two men left the restaurant with approximately

$14,000.

{¶3} On June 8, 2000, appellant was indicted on the following charges: Count 1,

aggravated robbery with firearm specifications; Counts 2 and 3, kidnapping with firearm

specifications; and Count 4, having a weapon while under disability. On September 11,

2000, the jury trial commenced. At the conclusion of the trial, the jury returned verdicts

of guilty on Counts 1, 2, and 3, and the firearm specifications attached thereto. Appellant

was sentenced to ten years on each of the base counts and three years on the firearm

specifications. Appellant was ordered to serve an aggregate prison term of 33 years.

{¶4} In Moore I, appellant raised eight assignments of error, including denial of

his constitutional rights to effective assistance of counsel, self-representation, due

process, and a fair trial, as well as denial of his right to confrontation. This court

affirmed appellant’s convictions, but found that the trial court violated appellant’s right to

due process when it failed to make a finding that the consecutive sentences imposed were

not disproportionate to the offenses. Thus, appellant’s sentence was reversed, and his

case was remanded for resentencing.

{¶5} In January 2003, the Ohio Supreme Court denied appellant’s request for

leave to appeal, thus, appellant’s case returned to the trial court for resentencing. The

record reflects the trial court conducted the resentencing in 2005 via video
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“teleconference” over appellant’s objection to that procedure. After appellant received

the same sentence as originally imposed, he appealed the trial court’s order of sentence.

{¶6} In State v. Moore, 8th Dist. No. 86244, 2006-Ohio-816 (“Moore II”), this

court reversed appellant’s sentence once again, holding that he had a constitutional and

statutory right to be physically present in court. On remand from that decision, the trial

court again sentenced appellant to a total term of 33 years on May 23, 2006.

{¶7} While Moore II was pending before this court, appellant petitioned the

federal district court for a writ of habeas corpus, alleging that four constitutional

violations occurred during his original trial. In Moore v. Haviland, 476 F.Supp.2d 768

(N.D.Ohio 2007) (“Moore III”), the district court agreed with appellant’s first claim. The

district court decided that, although appellant had asserted his right to self-representation

at his trial in a timely manner, the trial court unconstitutionally denied him the right by

failing to address appellant’s assertion. In essence, Moore III held that the trial court’s

lack of attention to the matter could not be excused. The district court further held that

Moore I had misapplied United States Supreme Court precedent in finding that appellant

had waived the issue. The district court concluded its decision by ordering as follows:

“[P]etitioner shall be released from custody unless the State of Ohio commences a new

trial against him within 120 days after this judgment becomes final.”

{¶8} The warden, however, appealed the judgment of the federal district court.

Moore III was subsequently affirmed by the United States Sixth Circuit Court of Appeals
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in Moore v. Haviland, 531 F.3d 393 (6th Cir.2008) (rehearing and rehearing en banc

denied).

{¶9} The warden then filed a petition for writ of certiorari. In light of this action,

the federal district court issued a stay of its decision in Moore III, pending a

determination on the warden’s petition. Moore v. Haviland, 607 F.Supp.2d 867

(N.D.Ohio 2009).

{¶10} On October 5, 2009, the United States Supreme Court denied the petition

for a writ of certiorari. Welch v. Moore, __U.S. __, 130 S.Ct. 92, 175 L.Ed.2d 234

(2009). Subsequently, the district court lifted the stay on its decision in Moore III. By

this time, Moore III’s original order had been pending for nearly three years.

{¶11} On October 21, 2009, the Cuyahoga County Court of Common Pleas issued

a journal entry stating, in pertinent part:

This court has learned this date that this case has been reversed by the Sixth
Circuit of the United States Court of Appeals and * * * has to be tried
within 25 days * * *.

Defendant is ordered returned * * * for a pre-trial conference on 11-02-09
[at] 9:00 a.m. and trial is scheduled for [Monday,] 11-9-09 [at] 9:00 a.m.

{¶12} On November 5, 2009, appellant appeared in court and stated that he would

not waive his right to counsel or his right to a speedy trial. During the hearing, the Public

Defender’s Office cited a conflict and declined to represent appellant in this matter. The

case was referred for reassignment. Between November 6 and November 9, 2009,

appellant met with approximately eight separate attorneys. None of the attorneys were
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able to represent him due to time constraints. Based on appellant’s failure to obtain legal

counsel, the Ohio Attorney General filed a motion for extension of time with the federal

district court.

{¶13} On November 10, 2009, attorney Rufus Sims was appointed to represent

appellant. On that date, the federal district court granted the Ohio Attorney General’s

motion for extension of time and continued appellant’s trial date for 30 days.

{¶14} On November 19, 2009, attorney Sims filed a motion for enlargement of

time for trial with the federal district court. On November 25, 2009, the trial court set a

trial date for December 8, 2009, pending the federal district court’s decision on attorney

Sims’s motion.

{¶15} The case was called to trial on December 8, 2009. On that date, it was

learned that the federal district court granted attorney Sims’s motion for extension of

time, and appellant’s trial was rescheduled to January 18, 2010. Appellant objected to

the extension of time, and the following day appellant fired attorney Sims after a heated

altercation occurred on the record.

{¶16} On December 14, 2009, the trial court appointed the State Public Defender’s

Office to represent appellant. Trial commenced on April 1, 2010. After the jury was

selected, appellant elected to exercise his constitutional right to self-representation. At
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the conclusion of the trial, appellant was found guilty on all counts,2 including the one-

and three-year firearm specifications. The court sentenced appellant to ten years on each

count, to run concurrently to each other, and three years for the gun specifications, for an

aggregate sentence of 33 years.

{¶17} In this timely appeal, appellant raises 15 assignments of error for review.

Law and Analysis

I. Right to Counsel

{¶18} In his first assignment of error, appellant argues that his due process rights

and the right to counsel were denied because the trial court failed to make adequate

inquiry into appellant’s dissatisfaction with court-appointed counsel.

{¶19} In State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), the Ohio

Supreme Court held that when an accused raises a specific complaint regarding his

dissatisfaction with counsel during the course of the trial, the trial court has an obligation

to ensure that the record contains an adequate investigation of the complaint before

continuing with the trial. Id. at 19-20. “The right to counsel is important enough that in a

situation such as this a reviewing court should have sufficient information in the record to

determine whether a claim of inadequate counsel is justified.” Once a defendant makes

the requisite showing, the trial court’s failure to appoint new counsel “amounts to a

Appellant was not retried on the original indictment’s Count 4, having a
2

weapon while under disability.
 -9-

denial of effective assistance of counsel.” State v. Pruitt, 18 Ohio App.3d 50, 57, 480

N.E.2d 499 (8th Dist.1984).

{¶20} “The decision whether or not to remove court appointed counsel and allow

substitution of new counsel is addressed to the sound discretion of the trial court, and its

decision will not be reversed on appeal absent an abuse of discretion.” Id. “The term

‘abuse of discretion’ implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶21} In the instant case, appellant appeared in court with attorney Sims for the

first time on November 16, 2009. During the hearing, the following statements were

made:

DEFENDANT: May I speak?

COURT: Now you can speak Mr. Moore. Go ahead.

DEFENDANT: I would like to go to the record that I do not want him for
my lawyer.

COURT: You don’t?

DEFENDANT: No.

COURT: What is the problem? I thought everything was going smooth
here.

***

DEFENDANT: Because he said to me that his schedule was real tight and
that he felt that the only way that he could really give me a good defendant
[sic] was to have two associates assigned and an investigator, because they
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would have to basically put the case together, and then he could take it to
trial and actually represent me at trial, but he needed assistance to do that.

{¶22} Additionally, appellant argued that because attorney Sims had other trials

pending, he had “too much on his plate to properly represent [appellant] in such a short

amount of time.”

{¶23} Generally, “an indigent defendant’s right to counsel does not extend to

counsel of the defendant’s choice.” Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209

N.E.2d 204 (1965). Rather, “[t]o discharge a court-appointed attorney, the defendant

must show ‘”a breakdown in the attorney-client relationship of such magnitude as to

jeopardize a defendant’s right to effective assistance of counsel.”’” State v. Coleman, 37

Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2 Cal.3d 205,

215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970). The accused is not guaranteed a

“meaningful relationship” with his counsel. Morris v. Slappy, 461 U.S. 1, 13-14, 103

S.Ct. 1610, 75 L.Ed.2d 610 (1983). The fact that an accused disagrees with his attorney

regarding trial tactics and strategy is insufficient to warrant the substitution of counsel.

State v. Alexander, 10th Dist. Nos. 05AP-192 and 05AP-245, 2006-Ohio-1298.

{¶24} Initially, we note that appellant set forth little grounds to support his request

for appointment of new counsel except for his unfounded belief that attorney Sims could

not adequately represent him because he had other trials pending. Such a challenge to

representation does not constitute a breakdown in the attorney-client relationship that

warrants the appointment of new counsel.
 -11-

{¶25} Regardless of the basis for appellant’s displeasure, we find that the trial

court diligently considered appellant’s concerns and complied with its obligation to

ensure that the record contains an adequate investigation of the complaint before

continuing with the trial. Upon hearing appellant’s request for dismissal of counsel, the

trial court inquired as to appellant’s basis for dismissal and allowed appellant to speak

freely in support of his complaint. Once the trial court understood the nature of

appellant’s arguments, it explained that attorneys commonly represent more than one

client at a time and that attorney Sims was a highly qualified, competent, and well

respected attorney in the community.

{¶26} Thus, the record adequately reflects that the trial court addressed appellant’s

concerns on the record and explained that appellant’s quarrels with attorney Sims failed

to establish any rational form of ineffective assistance of counsel. In fact, the trial court’s

only rational basis to excuse attorney Sims from the case was based on the actions of

appellant, who threatened attorney Sims’s life on the record. Under the circumstances of

this case, we cannot say the trial court abused its discretion.

{¶27} Appellant’s first assignment of error is overruled.

II. Ineffective Assistance of Counsel

{¶28} In his second assignment of error, appellant argues that he was denied

effective assistance of counsel based on attorney Sims’s acceptance of the appointment
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despite his heavy workload and his decision to file a motion for extension of time with

the federal court without appellant’s consent.

{¶29} In order to prevail on an ineffective assistance of counsel claim, a defendant

must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), certiorari denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768

(1990).

{¶30} Initially, the defendant must show that counsel’s performance was

deficient. To meet that requirement, the defendant must show that counsel’s error was so

serious that counsel was not functioning as the “counsel” guaranteed by the Sixth

Amendment. The defendant may prove counsel’s conduct was deficient by identifying

acts or omissions that were not the result of reasonable professional judgment. The court

must then determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance. Strickland

at 690.

{¶31} Next, if the defendant successfully proves that counsel’s assistance was

ineffective, the second prong of the Strickland test requires the defendant to prove

prejudice in order to prevail. Id. at 692. To meet that prong, the defendant must show

that counsel’s errors were so serious as to deprive him of a fair trial, a trial whose result is

reliable. Id. at 687. A defendant meets this standard with a showing “that there is a
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reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

{¶32} As discussed, we find that appellant has failed to establish that attorney

Sims’s workload prevented him from adequately representing appellant’s interests. The

record reflects that attorney Sims was actively preparing for appellant’s case. During the

November 16, 2009 pretrial hearing, attorney Sims affirmatively stated on the record that

he was there to “save and protect the rights of Mr. Moore” and was working diligently to

provide proper representation given the limited time he was given to prepare for trial.

The record reflects that attorney Sims had met with appellant on several occasions, was

in the process of filing various motions for discovery on appellant’s behalf, and was

prepared to assign two of his associates and an investigator to assist him in trial

preparation.

{¶33} Furthermore, we conclude that attorney Sims did not render ineffective

assistance by filing a motion for extension of time with the federal court. In State v.

McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978), the court stated:

A defendant’s right to be brought to trial within the time limits expressed in
R.C. 2945.71 may be waived by his counsel for reasons of trial preparation
and the defendant is bound by the waiver even though the waiver is
executed without his consent.

{¶34} While we recognize that the speedy trial rights outlined in R.C. 2945.71 do

not apply to retrials, State v. Fanning, 1 Ohio St.3d 19, 21, 437 N.E.2d 583 (1982), we
 -14-

find that the rationale supporting the McBreen statement is applicable herein. In other

words, the time limit set forth by federal court order was subject to waiver without

appellant’s consent where, as here, the waiver was required for the purposes of trial

preparation.

{¶35} In this matter, attorney Sims was appointed to represent appellant on

November 10, 2009. On November 19, 2009, attorney Sims filed an emergency motion

for extension of time with the federal circuit court. During the December 2, 2009 pretrial

hearing, attorney Sims explained:

Your honor, the emergency motion is to ensure that Mr. Moore receives a
fair trial, giving me adequate time to prepare for trial so I can adequately
protect Mr. Moore’s rights to a fair trial guaranteed under the 5th and 6th
amendments of the United States Constitution.

{¶36} Thus, the motion was predicated on attorney Sims’s desire to provide

appellant with a fair trial and was necessary for trial preparation. Under these

circumstances, we cannot conclude that appellant’s counsel rendered ineffective

assistance.

{¶37} Appellant’s second assignment of error is overruled.

III. Untimely Appointment of Counsel

{¶38} In his third assignment of error, appellant argues that he received ineffective

assistance of counsel when the trial court appointed counsel just five days before his trial

was set.
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{¶39} Courts have previously determined that a trial court’s decision to appoint

counsel on the day of trial constitutes prejudicial error and effectively denies a defendant

his constitutional right to assistance of counsel. State v. Johnson, 8th Dist. No. 80436,

2002-Ohio-7057. However, the Constitution does not specify the period that must

intervene between the required appointment of counsel and trial. Hunt v. Mitchell, 261

F.3d 575, 585 (6th Cir.2001). Rather, a defendant only needs time to confer, consult, and

prepare a defense with his appointed counsel. Avery v. Alabama, 308 U.S. 444, 446, 60

S.Ct. 321, 84 L.Ed. 377 (1940).

{¶40} In this matter, it is clear that attorney Sims met with appellant on several

occasions to discuss trial strategies in the days leading to the trial date. The record

further reflects that attorney Sims conveyed to the judge that he planned to utilize the

assistance of his associates and an investigator in preparing for appellant’s trial.

Moreover, the federal court’s grant of the Ohio Attorney General’s motion for extension

of time on November 9, 2010, extended appellant’s original trial date by 30 days, thereby

alleviating any argument that the initial appointment of attorney Sims just five days

before his trial date effectively denied appellant his constitutional right to assistance of

counsel.

{¶41} Appellant’s third assignment of error is overruled.

IV. Waiver of Counsel — Self-Representation
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{¶42} In his fourth assignment of error, appellant argues that he received

ineffective assistance of counsel when the trial court accepted his written waiver of

counsel and accepted his request to proceed pro se without first engaging in a colloquy to

ensure that his decision was made knowingly, voluntary, and intelligently.

{¶43} Although a defendant may eloquently express a desire to represent himself,

a trial court must still satisfy certain parameters to ensure that the defendant’s waiver of

the constitutional right to counsel is made knowingly, intelligently, and voluntarily. See

State v. Thompson, 8th Dist. No. 85483, 2005-Ohio-6126. In State v. Buchanan, 8th Dist.

No. 80098, 2003-Ohio-6851, this court reiterated the well-established parameters and the

significance of a defendant’s decision to waive his constitutional right to counsel and

represent himself as follows:

“The Sixth Amendment, as made applicable to the states by the Fourteenth
Amendment, guarantees that a defendant in a state criminal trial has an
independent constitutional right of self-representation and that he may
proceed to defend himself without counsel when he voluntarily, and
knowingly and intelligently elects to do so.” State v. Gibson (1976), 45
Ohio St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing
Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
However, “courts are to indulge in every reasonable presumption against
the waiver of a fundamental constitutional right, including the right to be
represented by counsel.” State v. Dyer (1996), 117 Ohio App.3d 92, 95,
689 N.E.2d 1034. As a result, “a valid waiver affirmatively must appear in
the record, and the State bears the burden of overcoming the presumption
against a valid waiver.” State v. Martin, Cuyahoga App. No. 80198, 2003-
Ohio-1499. “In order to establish an effective waiver of right to counsel, the
trial court must make sufficient inquiry to determine whether a defendant
fully understands and intelligently relinquishes that right.” Gibson, supra,
paragraph two of the syllabus.
 -17-

Although there is no prescribed colloquy in which the trial court and a pro
se defendant must engage before a defendant may waive his right to
counsel, the court must ensure that the defendant is voluntarily electing to
proceed pro se and that the defendant is knowingly, intelligently, and
voluntarily waiving the right to counsel. Martin, supra, citing State v.
Jackson (2001), 145 Ohio App.3d 223, 227, 762 N.E.2d 438. Given the
presumption against waiving a constitutional right, the trial court must
ensure the defendant is aware of “the dangers and disadvantages of self-
representation” and that he is making the decision with his “eyes open.”
Faretta, supra, at 835.

In determining the sufficiency of the trial court’s inquiry in the context of
the defendant’s waiver of counsel, the Gibson court applied the test set
forth in Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct. 316, 92
L.Ed. 309, as follows:

“* * * To be valid such waiver must be made with an apprehension of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the matter.” Buchanan at ¶15-18.

{¶44} In this matter, appellant made a request to represent himself on the record

and in writing. Thereafter, the trial court engaged in a lengthy discussion with appellant

regarding his right to proceed pro se. The trial court advised him of his maximum

possible sentence, advised him of the dangers associated with self-representation, and

explained certain trial procedures to him. Thereafter, appellant acknowledged that his

decision to proceed pro se was being made knowingly, voluntarily, and intelligently.

Appellant indicated that he was not coerced or threatened in any way to make the

decision to represent himself.
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{¶45} Furthermore, as required by Crim.R. 44(C), appellant signed two separate

documents acknowledging in writing his waiver of the right to counsel. Within these

documents, appellant indicated that his decision to proceed pro se was being made

knowingly, intelligently, and voluntarily and that he understood his rights, the nature of

the charges brought against him, the maximum possible sentences, and the perils of

proceeding pro se.

{¶46} In light of the trial court’s statements on the record and the written waivers

signed by appellant, it is clear that the trial court took precautions to ensure that appellant

understood the nature of his decision to proceed pro se and that his decision to waive his

right to counsel was knowingly, intelligently, and voluntarily made.

{¶47} Appellant’s fourth assignment of error is overruled.

V. Plea Agreement

{¶48} In his fifth assignment of error, appellant argues that the state denied him

due process of law by refusing to offer him the same plea agreement that he was offered

prior to his original trial.

{¶49} Appellant’s argument relies on Turner v. Tennessee, 940 F.2d 1000 (6th

Cir.1991). In Turner, the defendant was indicted in Tennessee on two counts of

aggravated kidnapping and one count of felony murder. Prior to trial, the prosecutor

offered defendant a two-year prison term in return for a guilty plea to lesser charges, but

defendant rejected the offer on the advice of counsel. Defendant was subsequently
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convicted on all counts and sentenced to life imprisonment for the murder conviction and

40 years for each kidnapping conviction. He was subsequently granted a new trial on the

grounds of ineffective assistance of counsel in rejecting the two-year plea offer.

Although plea negotiations were reopened, the prosecutor refused to offer less than 20

years’ imprisonment. Defendant exhausted his state remedies and then filed a habeas

petition in federal court.

{¶50} The court concluded that the appropriate remedy for violation of

defendant’s Sixth Amendment rights would be a new plea hearing during which a

rebuttable presumption of prosecutorial vindictiveness would attach to any plea offer in

excess of the original two-year offer. The Sixth Circuit affirmed the district court,

concluding there was a realistic likelihood of vindictiveness that demanded application of

a rebuttable presumption of vindictiveness to any plea offer in excess of the original two-

year offer. Id.

{¶51} Therefore, where a criminal defendant’s convictions are reversed on appeal

and the matter is remanded for new trial, the “prosecution may rescind its original plea

offer only upon overcoming a presumption of vindictiveness.” See State v. Williams,

12th Dist. No. CA2004-06-129, 2005-Ohio-3902.

{¶52} Prior to his retrial, the state offered appellant a plea of time served in this

case, leaving appellant to serve the five-year consecutive sentence he had received in an

unrelated case. However, appellant refused to accept the proposed plea agreement,
 -20-

arguing that he was entitled to the plea bargain offered to him prior to his original trial in

2000. Appellant alleged that, prior to his original trial, the state offered him a sentence of

five years on all of his cases, including those unrelated to the Hard Rock Cafe robbery.

{¶53} While we recognize appellant’s position in this matter, the record does not

adequately reflect the validity of his statements regarding the state’s prior plea offers. An

appellant is responsible for providing an appellate court with a record of the facts,

testimony, and evidentiary matters necessary to support his assignments of error. Yates v.

Brown, 185 Ohio App.3d 742, 2010-Ohio-35, 925 N.E.2d 669 (9th Dist.). In this matter,

appellant has failed to provide this court with a transcript or document demonstrating the

existence and particulars of the state’s alleged plea offer in 2000. Therefore, we have no

basis to review appellant’s argument as it relates to his prior plea agreement.

{¶54} Appellant’s fifth assignment of error is overruled.

VI. Miranda Rights — Motion to Suppress

{¶55} In his sixth assignment of error, appellant argues that he was denied due

process of law where the state failed to prove that he was given his Miranda rights and

where his confession was induced by threats to prosecute his girlfriend.

{¶56} A motion to suppress presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions
and evaluate the credibility of witnesses. Consequently, an appellate court
must accept the trial court’s findings of fact if they are supported by
 -21-

competent, credible evidence. Accepting these facts as true, the appellate
court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard. (Internal citations omitted.) Id.

A. Miranda Rights

{¶57} Pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), statements “stemming from custodial interrogation of the defendant”

must be suppressed unless the defendant had been informed of his Fifth and Sixth

Amendment rights before being questioned. Miranda requires that a suspect

be warned prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so
desires. Id. at 479.

“The State bears the burden of establishing, by a preponderance of the
evidence, that the defendant knowingly, intelligently, and voluntarily
waived his Miranda rights based on the totality of the circumstances
surrounding the investigation. State v. Gumm (1995), 73 Ohio St.3d 413,
429, 653 N.E.2d 253.” State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-
621, 907 N.E.2d 1254 (8th Dist.), ¶ 26, quoting State v. Williams, 8th Dist.
No. 82094, 2003-Ohio-4811, ¶ 12.

{¶58} Initially, appellant contends that his motion to suppress was appropriate

based on the state’s failure to prove that he was informed of his Miranda rights prior to

making his oral statement. Appellant’s argument lacks merit.

{¶59} In the present case, detectives obtained a written confession from appellant

on May 31, 2000, shortly after his arrest. The interrogation of appellant was conducted

by Detectives Michael Alexander and Rick Maruniak. At the suppression hearing, Det.
 -22-

Alexander testified that he verbally read appellant his Miranda rights prior to

interrogating him and provided appellant with the opportunity to read his rights in

writing.3 According to Det. Alexander, “We advised him. We read him his rights. We

had him read the rights on a sheet of paper, and at the conclusion he read them again and

signed and acknowledged them.”

{¶60} Despite appellant’s testimony to the contrary, the evidence presented at the

suppression hearing demonstrates that appellant was advised of his Miranda rights by

Det. Alexander and acknowledged his understanding of those rights in writing.

Accordingly, we find that the trial court properly determined that the state established, by

a preponderance of the evidence, that appellant was advised of his Miranda rights.

B. Voluntary Waiver

{¶61} Alternatively, appellant argues that the waiver of his Miranda rights was not

freely and voluntarily made. He contends that his statements were induced by pressure

and threats to prosecute his girlfriend. He further contends that he was under the

influence of drugs at the time of his interrogation, rendering his confession involuntary.

3 Prior to making a written statement, appellant was presented with a
document that read: “Before making any written statement that may be used
against you at the time of your trial, we wish to repeat the instructions issued prior
to oral interrogation, that you have the right to counsel, appointed or retained,
before interrogation, that you have the right to remain silent, and that anything
you say may be used against you. You have the right to have an attorney present.”
Below that paragraph, appellant signed his name and acknowledged his
understanding of his rights and indicated that he was prepared to make a written
statement.
 -23-

{¶62} In order for a defendant’s waiver of Miranda rights to be valid, the waiver

must be knowingly, intelligently, and voluntarily made. Miranda at 444. The state bears

the burden of demonstrating, by a preponderance of the evidence, that a defendant

knowingly, intelligently, and voluntarily waived his Miranda rights based on the totality

of the circumstances. State v. Gumm, 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d

253. “The totality of the circumstances includes ‘the age, mentality and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation; the

existence of threat or inducement.’” State v. Campbell, 90 Ohio St.3d 320, 332, 2000-

Ohio-183, 738 N.E.2d 1178, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d

1051 (1976), paragraph two of the syllabus. Absent a showing that the waiver was

voluntary, the waiver is invalid and the defendant’s statements should be suppressed. Id.

{¶63} Under the totality of the circumstances, we cannot say that appellant’s

statements were coerced. During the suppression hearing, appellant testified that his

confession was induced based on the officer’s threats to arrest his girlfriend unless he

cooperated. Appellant alleged that the detectives stated, “So, you can get her a cell with

you or you can cooperate and we’ll leave her out of it, but it’s your choice.” However,

on cross-examination of Det. Alexander, appellant’s counsel asked, “During the

interrogation of John Moore was there pressure, leverage, placed on him to provide

information in order to keep his sweetheart [* * *] out of trouble with the law?” Det.

Alexander responded, “Not to my knowledge, no.”
 -24-

{¶64} With respect to appellant’s contention that he was under the influence of

drugs at the time of his interrogation, the following statements were made at the

suppression hearing during the direct examination of Det. Alexander:

Q. Are you able to make a determination, by your own observations, of
whether one is under the influence of drugs when you’re interacting with
them?

A. Yes.

Q. And do you recall at the time of this interview with John Moore, did he
appear to be under the influence of any drugs or alcohol?

A. He did not.

{¶65} As stated, the trial court is in the best position to weigh the credibility of

witnesses when presented conflicting testimony at a suppression hearing. Burnside at ¶

8.

{¶66} In light of Det. Alexander’s testimony during the suppression hearing, we

find that the trial court had credible testimony to refute appellant’s contentions that he

was coerced to make an involuntary statement during his interrogation. Accordingly, we

find that appellant knowingly, intelligently, and voluntarily waived his Miranda rights.

The trial court did not err in denying appellant’s motion to suppress.

{¶67} Appellant’s sixth assignment of error is overruled.

VII. Hearsay Testimony

{¶68} In his seventh assignment of error, appellant argues that the court

committed prejudicial error by allowing the state to bolster its case with extensive
 -25-

inadmissible hearsay testimony relating to appellant’s involvement in the Hard Rock

Cafe robbery.

{¶69} Evid.R. 801(C) defines hearsay as “a statement, other than one made by the

declarant while testifying at trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Testimonial out-of-court statements presented in a criminal trial also

“violate the Confrontation Clause unless the witness was unavailable to testify at trial and

the defendant had a prior opportunity to cross-examine the witness.” State v. Crager, 116

Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745, ¶ 41, citing Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

{¶70} Approximately one week after the Hard Rock Cafe robbery, Cleveland

police officers arrested Chaney and Trent Willis as they were fleeing from the

commission of an unrelated aggravated robbery. The men were interrogated by officers

about their involvement in the Hard Rock Cafe robbery. At trial, the state elicited the

following testimony from Det. Alexander about the statements he received from Willis

over the course of his investigation:

Q. After that visit with Trent Willis, did you have the occasion, either
yourself or with other detectives to be involved in this case?

A. We were made aware of a second suspect in the Hard Rock.

DEFENSE: Objection.

COURT: Overruled.

DEFENSE: Can I get a sidebar, sir?
 -26-

COURT: You can in a minute. Get further into questioning, we’ll have a
sidebar.

Q. What occurred after the interview with Trent Willis?

A. We went — we signed Trent Willis out of city jail, and he pointed out a
location where the second suspect in the Hard Rock Cafe resided.

DEFENSE: Objection.

COURT: Overruled.

Q. Once the address was pointed out, what occurred next?

A. We obtained a consent search warrant. We met with a female * * *.
She gave us consent of her residence. She acknowledged knowing a male
by the name of John Moore, and we obtained two items from that search
warrant.

{¶71} Subsequently, the trial court found that the statements made by Det.

Alexander relating to what he learned from Willis were inadmissible testimony on

hearsay grounds. The record reflects that the trial court immediately struck the testimony

and gave a cautionary instruction to the jury to disregard those statements. Generally, a

jury will be presumed to follow an instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is an overwhelming probability that the jury

would be unable to follow the court’s instructions and a strong likelihood that the effect

would be devastating to the defendant. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97

L.Ed.2d 618 (1987).
 -27-

{¶72} Assuming, as we must in the absence of evidence to the contrary, that the

jurors accepted and followed the court’s curative instruction, we conclude that the

instruction was sufficient to cure any error created by Det. Alexander’s hearsay

statements. Moreover, any prejudicial effect from such testimony was far outweighed by

the overwhelming evidence of appellant’s guilt.

{¶73} Accordingly, appellant’s seventh assignment of error is overruled.

VIII. Prosecutorial Misconduct

{¶74} In his eighth assignment of error, appellant argues that the state committed

prosecutorial misconduct based on its discussion of a silver 9 mm semi-automatic

handgun during its case-in-chief when the state knew that the gun had been recovered

from suspects in an unrelated robbery, when the state knew it could not prove that the

gun had been used in the Hard Rock Cafe robbery, and when the state never intended to

introduce the exhibit into evidence.

{¶75} The test for prosecutorial misconduct is whether the prosecutor’s actions

were improper and, if so, whether they prejudicially affected substantial rights of the

accused. State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484; State v. Lott,

51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct.

591, 112 L.Ed.2d 596 (1990). A prosecutor’s conduct during trial cannot be grounds for

error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch, 33
 -28-

Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The focus of that inquiry is on the fairness of

the trial, not the culpability of the prosecutor. Bey at 487.

{¶76} Our focus, upon review, is whether the prosecutor’s actions deprived

appellant of a fair trial such that there is a reasonable probability that, but for the

prosecutor’s misconduct, the result of the proceeding would have been different. State v.

Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587, ¶ 42, citing State v. Loza, 71 Ohio St.3d

61, 78-79, 641 N.E.2d 1082 (1994), overruled on other grounds.

{¶77} During its direct examination of Officer Troy Edge, the state adduced

testimony that approximately one week after the Hard Rock Cafe robbery, Officer Edge

recovered a “silver hand gun” from Chaney during his arrest in an unrelated case. The

state attempted to introduce the firearm into evidence, as State Exhibit 65, and intended

to establish that the gun recovered from the unrelated case was the same gun used during

the commission of the Hard Rock Cafe robbery. At the time of Officer Edge’s testimony,

the firearm had not yet been located by the Cleveland police department.

{¶78} Subsequently, Hard Rock Cafe manager Tammi Minoski testified that one

of the robbers held a “shiny silver gun” to her temple while she put money from the safe

into a duffel bag. At the time of Minoski’s testimony, the firearm had yet to be located

by the Cleveland police department. Without the firearm present in court at the time of

her testimony, the state was unable to authenticate the firearm as the weapon that was
 -29-

pressed against her temple during the state’s direct examination of her. As a result, the

state withdrew the exhibit at the conclusion of its case-in-chief.

{¶79} Based on the circumstances presented at appellant’s retrial, we find no basis

to conclude that the state’s discussion related to the retrieval of a firearm matching the

description of the firearm used during the Hard Rock Cafe robbery was made without a

good faith intent to introduce the firearm at the conclusion of its case-in-chief. Moreover,

in light of Minoski’s testimony that a firearm was used during the commission of the

crime, we find no basis to conclude that appellant was prejudiced by the state’s

discussion of the weapon recovered during the arrest of Chaney in an unrelated case.

{¶80} Accordingly, appellant’s eighth assignment of error is overruled.

IX. Operability of Firearm

{¶81} In his ninth assignment of error, appellant argues that the trial court

committed prejudicial error by allowing the state to introduce hearsay evidence relating

to the operability of the firearm retrieved from Chaney.

{¶82} At retrial, the following discussion occurred between the state and

Detective Dale Moran:

Q. Now, Officer — Detective, I’ve handed you what’s been previously
marked as State’s Exhibit 65. What is State’s Exhibit 65?

A. This is a silver handgun which happens to be a Lorein nine millimeter
automatic. * * *.

Q. And there is some other items attached to the handgun; is that correct?
 -30-

A. Yes.

Q. What is that?

A. That’s a bag that we normally put the bullets and magazine in.

Q. Do you know for sure if there are magazines and bullets in there?

A. Definitely, yeah.

Q. And how do you know that?

A. I had this weapon test fired.

Q. You had this weapon test fired?

A. Yes, I did.

Q. Is it operable?

A. It is one hundred percent operable.

{¶83} Appellant argues that Det. Moran lacked personal knowledge to testify to

the operability of the weapon because he was not the individual who personally tested the

weapon. However, based on Det. Moran’s testimony, we find no basis to support

appellant’s argument. As stated above, Evid.R. 801(C) defines hearsay as “a statement,

other than one made by the declarant while testifying at trial or hearing, offered in

evidence to prove the truth of the matter asserted.” We interpret Det. Moran’s testimony

as an indication that he was directly involved in the test fire of the firearm and, therefore,

his testimony did not consist of hearsay statements.

{¶84} Appellant’s ninth assignment of error is overruled.
 -31-

X. Motion in Limine

{¶85} In his tenth assignment of error, appellant argues that the trial court abused

its discretion by denying his motion in limine to suppress his confession and refusing to

redact references to other bad acts made in his confession.

{¶86} Evid.R. 404(B) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.

{¶87} Additionally, R.C. 2945.59 provides:

In any criminal case in which the defendant’s motive or intent, the absence
of mistake or accident on his part, or the defendant’s scheme, plan, or
system in doing an act is material, any acts of the defendant which tend to
show his motive or intent, the absence of mistake or accident on his part, or
the defendant’s scheme, plan, or system in doing the act in question may be
proved, whether they are contemporaneous with or prior or subsequent
thereto, notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.

{¶88} R.C. 2945.59 is to be strictly construed against the state, and to be

conservatively applied by a trial court. State v. DeMarco, 31 Ohio St.3d 191, 194, 509

N.E.2d 1256 (1987). Thus, evidence of other acts may be admissible if the evidence is

offered for a purpose other than to show the accused’s propensity to act in conformity

with the accused’s character, e.g., to commit a certain type of crime. State v. Jamison, 49

Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus. For prior acts evidence to be

admissible, the evidence must be relevant to proving the guilt of the offense in question.
 -32-

State v. Gardner, 59 Ohio St.2d 14, 20, 391 N.E.2d 337 (1979). See also State v.

Henderson, 76 Ohio App.3d 290, 294, 601 N.E.2d 596 (12th Dist.1991). There must be

substantial evidence that the accused committed the act. See State v. Carter, 26 Ohio

St.2d 79, 269 N.E.2d 115 (1971), at paragraph two of the syllabus. In addition, the prior

act must not be too remote and must be closely related in time and nature to the offense

charged. State v. Burson, 38 Ohio St.2d 157, 159, 311 N.E.2d 526 (1974). If the act is

too distant in time or too removed in method or type, it has no permissible value.

Henderson at 294.

{¶89} In this matter, we agree with the trial court’s position that the statements

made by appellant in his written confession were relevant for the purpose of

demonstrating his identity. Appellant’s confession included detailed information that

linked him to his accomplice, Chaney. Appellant explained that he had previously

assisted Chaney in the robbery of another downtown Cleveland restaurant by providing

him with a detailed map of the premises and by informing him of how many employees

would be working at the restaurant. The previous robbery, like that of the Hard Rock

Cafe, was an inside job. Throughout the trial, appellant argued that he was not involved

in the Hard Rock Cafe robbery, thereby placing his identity at issue.

{¶90} The information contained in appellant’s statement was not used to establish

his propensity to commit crimes, rather, it was used to establish his identity and presence

at the Hard Rock Cafe by highlighting his criminal relationship and history with Chaney.
 -33-

Based on appellant’s history of committing inside robberies with Chaney, the state

established a logical connection between the two crimes in order to identity appellant as a

participant in the Hard Rock Cafe robbery. See State v. Murphy, 4th Dist. No.

09CA3311, 2010-Ohio-5031; State v. Broom, 8th Dist. No. 51237, 1987 WL 14401 (July

23, 1987). Therefore, the challenged portions of appellant’s written confession were

properly admitted.

{¶91} Appellant’s tenth assignment of error is overruled.

XI. Manifest Weight

{¶92} In his eleventh assignment of error, appellant argues that his convictions are

against the manifest weight of the evidence. When reviewing the weight of the evidence,

we must review the record, weigh the evidence, consider the credibility of the witnesses,

and determine whether the jury clearly lost its way and created a manifest miscarriage of

justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

{¶93} A weight-of-the-evidence challenge indicates that a greater amount of

credible evidence supports one side of the issue than supports the other. Id. Further,

when reversing a conviction on the basis that the conviction was against the manifest

weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with

the factfinder’s resolution of the conflicting testimony. Id. Therefore, this court’s

“discretionary power to grant a new trial should be exercised only in the exceptional case
 -34-

in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶94} In this matter, numerous witnesses testified at trial that two men entered the

Hard Rock Cafe on May 21, 2000, and robbed the restaurant with the use of a firearm.

At trial, manager Tammi Minoski testified that she was informed that the two men were

at the Hard Rock Cafe in order to be interviewed for positions with the restaurant.

Minoski testified that she went upstairs to look for the potential employees. When she

did not find anyone, she returned to her office and resumed her work. She then heard a

knock at her door. When she opened the door, one of the men brandished a firearm, held

it to her temple, and ordered her to open the safe. Minoski testified that while she was

emptying the safe, a second robber entered her office and stated, “don’t worry, nobody’s

going to get hurt, we just want the money.” Minoski testified that once she emptied the

safe, the second robber taped her hands and feet and left her in her office. On redirect

examination, Minoski identified appellant’s voice as the voice of the second robber.

{¶95} Additionally, co-manager Lexi Halitsky testified that on May 21, 2000, she

was informed by an employee that two men were at the Hard Rock Cafe for job

interviews. Halitsky testified that she met with the two men briefly and advised them that

she would notify Minoski that they wished to apply for positions at the restaurant.

Halitsky testified that, upon notifying Minoski that the two men wished to be

interviewed, she went on with her day until she heard Minoski scream her name from her
 -35-

office. Halitsky testified that she ran to Minoski’s office, and Minoski told her that they

were being robbed. Halitsky testified that once she entered the office, she was ordered to

the ground, where one of the men tied her hands and feet together with duct tape.

{¶96} Finally, Halitsky testified that she was able to get a good look at each of the

men involved in the robbery and unequivocally identified appellant as the second robber:

Q. There was questioning over the description of robber number two * * *.
Is there any question in your mind who robber number two is?

A. No.

Q. Who is robber number two?

A. The defendant.

Q. This defendant. Pointing right here (indicating)?

A. Yes.

{¶97} Furthermore, appellant corroborated the statements made by the state’s

witnesses by making a full confession in a detailed written statement at the time of his

arrest. In his written confession, appellant stated:

[Chaney] was talking to the manager and I heard her scream and then he
called me into the office. He said bag the money because he was going to
get the other girl. Me and the manager was bagging the money. I told the
girl please do what he says, I’m new to this but he will hurt you. He aint
playing. [Chaney] came in with the other girl. [Chaney] put her on the
ground at gunpoint and started taping her mouth with duct tape.

{¶98} In light of the evidence presented at trial, including the in-court

identification of appellant and appellant’s voluntary written confession, we are unable to
 -36-

conclude that the court clearly lost is way and created a manifest miscarriage of justice by

convicting appellant of aggravated robbery and kidnapping.

{¶99} Appellant’s eleventh assignment of error is overruled.

XII. Sufficiency of the Evidence

{¶100} In his twelfth assignment of error, appellant argues that the state failed to

present sufficient evidence to support his conviction for the firearm specifications.

{¶101} To prove a firearm specification, the state must show beyond a reasonable

doubt that a firearm was operable at the time of the offense. State v. Murphy, 49 Ohio

St.3d 206, 551 N.E.2d 932 (1990), syllabus. “[S]uch proof can be established beyond a

reasonable doubt by the testimony of lay witnesses who were in a position to observe the

instrument and the circumstances surrounding the crime.” Id. The state may use

circumstantial evidence to establish that the defendant possessed an operable firearm.

See Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, paragraph one of the syllabus. “A

victim’s belief that the weapon is a gun, together with the defendant’s intent to create and

use the victim’s belief for the defendant’s own criminal purposes, is sufficient to prove a

firearm specification.” State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884

N.E.2d 92, ¶ 53 (4th Dist.).

{¶102} In State v. Johnson, 8th Dist. No. 90449, 2008-Ohio-4451, ¶ 22, we stated:

“[A] firearm penalty-enhancement specification can be proven beyond a
reasonable doubt by circumstantial evidence. * * * [T]he trier of fact may
consider * * * any implicit threat made by the individual in control of the
firearm.” Thus where an individual brandishes a gun and implicitly but not
 -37-

expressly threatens to discharge the firearm at the time of the offense, the
threat can be sufficient to satisfy the state’s burden of proving that the
firearm was operable or capable of being readily rendered operable.
“Thompkins clarifies that actions alone, without verbal threats, may be
sufficient circumstances to establish operability of a firearm.” (Internal
citations omitted.)

{¶103} In this matter, Minoski testified that appellant’s accomplice held a

“silverish” gun to her temple and demanded that she empty the restaurant’s safe. Clearly,

a reasonable juror could construe the action of placing a firearm to Minoski’s head as an

implicit threat to discharge the firearm if the demands were not met. Accordingly, we

find that the testimony constituted sufficient proof of the firearm’s operability.

{¶104} Appellant’s twelfth assignment of error is overruled.

XIII. Allied Offenses

{¶105} In his thirteenth assignment of error, appellant argues that his conviction

for aggravated robbery and kidnapping are allied offenses.

{¶106} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court established the proper analysis for determining whether

offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25.

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
offenses are of similar import.
 -38-

“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.”’ State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50
(Lanzinger, J., dissenting).

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. Id. at ¶ 48-51.

{¶107} In the case at bar, appellant’s convictions for aggravated robbery and

kidnapping were not based on the same conduct or identical evidence, as appellant

argues. Rather, the two crimes were committed separately. Unlike situations where the

kidnapping of a victim is incidental to the commission of an aggravated robbery, the facts

supporting appellant’s kidnapping conviction were committed subsequent to the actual

commission of the aggravated robbery.

{¶108} The testimony adduced at trial indicates that, after completing the

aggravated robbery, the defendants bound the hands and feet of Minoski and Halitsky,

left them in an enclosed office, and fled the restaurant unnoticed by other employees.

Once the aggravated robbery of the Hard Rock Cafe was completed, “the act of

restraining the victims was no longer incidental to the aggravated robbery, but was to

facilitate appellant’s escape and lack of detection.” State v. Pittman, 5th Dist. No.
 -39-

10CAA110087, 2011-Ohio-4085, ¶ 50. Accordingly, appellant’s convictions did not

merge.

{¶109} Appellant’s thirteenth assignment of error is overruled.

XIV. Consecutive Sentences

{¶110} In his fourteenth assignment of error, appellant argues that the trial court

committed prejudicial error by failing to make findings of fact when it imposed

consecutive sentences.

{¶111} We summarily reject this argument on the authority of State v. Hodge, 128

Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in which the Ohio Supreme Court held

that “[t]rial court judges are not obligated to engage in judicial fact-finding prior to

imposing consecutive sentences * * *.” Id. at paragraph three of the syllabus.4

{¶112} Appellant’s fourteenth assignment of error is overruled.

KENNETH A. ROCCO, J.:

XV. Maximum Sentences

{¶113} Appellant’s fifteenth assignment of error states: “The trial court abused its

discretion by imposing maximum, consecutive sentences on all three counts.”

We note that the General Assembly has recently amended former R.C.
4

2929.14(E)(4), renumbered R.C. 2929.14(C)(4), and enacted new language requiring
fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. This legislation, which
had an effective date of September 30, 2011, was not applicable to Moore, who was
sentenced prior to September 30, 2011.
 -40-

{¶114} Moore challenges his sentence. Upon a review of the record, a majority

of this panel finds that his challenge has merit and that Moore’s sentence in this case

constitutes an abuse of the trial court’s discretion. Although it is extremely unusual for

an appellate court to find that a trial court abused its discretion in sentencing, it has,

however, been done. See, e.g., State v. Parker, 193 Ohio App.3d 506, 2011-Ohio-1418,

952 N.E.2d 1159 (2d Dist.). The facts of this case furnish an appropriate occasion for

this court to make such a finding.

{¶115} The United States Supreme Court has noted that courts must avoid both

the reality and “perception that no clear standards are being applied and that the rule of

law is imperiled by sentences imposed for no discernible reason other than the subjective

reactions of the sentencing judge.” Harmelin v. Michigan, 501 U.S. 957, 1007, 111 S.Ct.

2680, 115 L.E.2d 836 (1991) (Kennedy, J., concurring). A trial court’s incantation of

“magic words” during a sentencing hearing, therefore, does not preclude appellate review

of the propriety of the sentence imposed upon a defendant. State v. Nichols, 2d Dist. No.

2010 CA 60, 2011-Ohio-4671, ¶ 39.

{¶116} In this case, invoking the “magic words,” the trial court decided to impose

a term of 33 years on Moore. Moore thus received a sentence similar to one the court

may impose on a defendant who committed aggravated murder. See R.C.

2929.03(A)(1)(d).
 -41-

{¶117} At Moore’s sentencing hearing, the prosecutor argued that a 33-year

sentence was justified because of the trauma Moore and his co-defendant inflicted on the

victims. The judge agreed. If this sentence was “justified” for Moore, however, it begs

the question of why Moore’s co-defendant5 Lamar Chaney received much more lenient

treatment than he. In fact, Lamar Chaney, the co-defendant who actually used the gun

during the incident, was sentenced to only 9 years in prison.6

{¶118} Indeed, Chaney brought the gun to the restaurant, produced it, put it to the

head of one of the victims in order to terrorize her into giving up the restaurant’s money,

and sought out the location of the other victim, whereupon he also brought her to the

office at gunpoint so that both victims could be bound and gagged. Moore acted as

Chaney’s accomplice.

{¶119} Under these circumstances, Ohio public policy, as reflected in the criminal

statutes, required that Chaney should have received a mandatory and a longer sentence in

this case than Moore. Chaney was the person who subjected the victims to the most

“trauma,” but Moore received a sentence three-and-a-half times that of the gunman.

{¶120} The only obvious difference in the disposition of this case against Chaney

is that, unlike Moore, the docket reflects that Chaney chose not to exercise his right to a

5The trial court’s docket of this case number reveals that Moore’s three co-
defendants, Lamar Chaney, Fred King, and Gary Waller, were charged similarly for
their parts in the same incident.
 -42-

jury trial. Indeed, the docket of this case shows that the state actually dismissed the

firearm specifications against Chaney, along with six counts of the indictment, in

exchange for his guilty pleas to one count of aggravated robbery and two counts of

kidnapping. Moore, however, chose to take the case to the jury.

{¶121} Unlike the compliant Chaney, Moore was a difficult defendant who sorely

tried the court’s patience at every turn of the proceeding. It is difficult to come to any

other conclusion in light of the history of this case and the comments the trial court

directed toward Moore during the entire proceedings, but that the trial court decided to

punish him for exercising his constitutional right to trial. State v. Ambriez, 6th Dist. No.

L-03-1051, 2004-Ohio-5230.

{¶122} The trial court justified its disparate treatment of Moore by referring to his

lengthy criminal record. While the appellate record does not contain the specifics of

Moore’s criminal record as compared to that of Chaney, in light of the authority Chaney

displayed during the incident, it is unlikely that this was Chaney’s first offense. Yet the

same trial judge who determined Chaney should receive only nine years for his role in the

incident decided Moore deserved a sentence more than three times as long.

{¶123} The record reflects the trial court did not order any updated presentence

report in this case. If the distinguishing factor in choosing a 33-year sentence for Moore

According to the trial court’s docket of this case, a jury found one co-
6

defendant not guilty, and the other co-defendant entered a plea to one count of
attempted aggravated robbery and received a two-year sentence.
 -43-

was his criminal record, then this may have been within the trial court’s grasp in the year

2006 (the last year Moore appeared there for a resentencing hearing), but the appellate

record is bereft of it.

{¶124} The record reflects Chaney was the mastermind behind this incident; he

brought the gun and used it. However, the trial court never adequately explained the

dichotomy between the sentence it imposed on Chaney and the sentence it imposed on

Moore. Each time Moore came before the court for resentencing, the court never

indicated any inclination toward deviating from the 33-year prison term. By the time

Moore’s case returned to the trial court from federal court, Moore already had served

more than 11 years of his original sentence, and the gunman had completed his sentence.

{¶125} Without a proportionality analysis from the trial court, it is difficult to

review the record in this case without wondering whether the sins of the principal actor

were visited on Moore simply because he was a difficult defendant who exercised his

right to a jury trial. Had the trial court ordered the probation department to prepare a new

presentence report on Moore before pronouncing sentence, the issue would be easier to

decide.

{¶126} The Ohio legislature has made it a matter of public policy to punish

offenders who use guns in committing their crimes more severely than those who do not.

In this particular case, while Moore acted with complicity, he did not actually wield the
 -44-

weapon involved. His sentence, however, was 24 years more, more than 3 times as long

as, the one the gunman received.

{¶127} As the court commented in Nichols, 2d Dist. No. 2010 CA 60, 2011-Ohio-

4671, at ¶ 38, the trial court’s treatment of Moore “as being the most depraved offender”

is supported by neither the App.R. 9(B) record nor the legislative scheme and

“depreciates the lawfulness and validity of such a finding in those cases that truly do

merit such conclusions.”

{¶128} Based upon the foregoing analysis, Moore’s fifteenth assignment of error

is sustained.

Conclusion

{¶129} Pursuant to the disposition of appellant’s first through fourteenth

assignments of error, his convictions are affirmed. Pursuant to the disposition of

appellant’s fifteenth assignment of error, his sentence is reversed, and this case is

remanded or a resentencing hearing.

{¶130} The trial court is instructed to order the probation department to prepare a

current presentence report prior to conducting the resentencing hearing. The trial court

will then be in a better position to impose on appellant an appropriate sentence for his

part in the incident that led to his convictions in this case.

{¶131} Convictions affirmed; cause reversed in part and remanded to the trial

court for resentencing consistent with this opinion.

It is ordered that appellant and appellee share the costs herein taxed.
 -45-

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 resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE
FOR THE MAJORITY — ASSIGNMENTS OF ERROR 1-14;
DISSENTS, WITH OPINION, ON ASSIGNMENT OF ERROR 15.

KENNETH A. ROCCO, J.
FOR THE MAJORITY — ASSIGNMENT OF ERROR 15;
CONCURS ON ASSIGNMENTS OF ERROR 1-14.

MELODY J. STEWART, P.J., CONCURS WITH BOTH MAJORITY
OPINIONS.

FRANK D. CELEBREZZE, JR., J., DISSENTING ON ASSIGNMENT OF ERROR 15:

{¶132} I respectively dissent from the majority’s conclusion that the trial court

abused its discretion by imposing maximum, consecutive sentences on each of

appellant’s convictions.

{¶133} Appellate courts must apply a two-step approach when reviewing a

defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶4.
 First, they must 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. If this first prong
is satisfied, the trial court’s decision shall be reviewed under an abuse-of-
discretion standard. Id.

{¶134} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the

Ohio Supreme Court held that trial courts “have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the minimum sentences.”

Id. at ¶ 100.

{¶135} In Kalish, the Ohio Supreme Court explained that, “[a]lthough Foster

eliminated mandatory judicial fact-finding for upward departures from the minimum, it

left intact R.C. 2929.11 and 2929.12.” Id. at ¶ 13. Thus, the trial court must still

consider R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12,

which provides guidance in considering factors relating to the seriousness of the offense

and recidivism of the offender.

{¶136} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish at ¶ 17.

Instead, they serve as an overarching guide for trial judges to consider in
fashioning an appropriate sentence. In considering these statutes in light of
Foster, the trial court has full discretion to determine whether the sentence
satisfies the overriding purpose of Ohio’s sentencing structure. Moreover,
R.C. 2929.12 explicitly permits a trial court to exercise its discretion in
considering whether its sentence complies with the purposes of sentencing.
Id.

“Therefore, assuming the trial court has complied with the applicable rules and statutes,

the exercise of its discretion in selecting a sentence within the permissible statutory range

is subject to review for abuse of discretion pursuant to Foster.” Id.
 {¶137} Finding error in appellant’s sentence, the majority opines that the trial

court merely recited the “magic words” to justify appellant’s otherwise inappropriate

sentence. While I agree that a trial court’s incantation of magic words during a

sentencing hearing does not preclude appellate review of the propriety of the sentence

imposed, I find that the trial court did not merely recite statutory language in this matter.

Rather, the record reflects that the trial court carefully reviewed the sentencing factors

outlined in R.C. 2929.11 and 2929.12 and only issued appellant’s sentence after assessing

his past and present criminal conduct in accordance with those factors.

{¶138} The trial court stated in its judgment entry that appellant’s prison term is

consistent with the principles and purposes of sentencing set forth in R.C. 2929.11 and

that it had considered all required factors of the law. Moreover, the transcript of the

sentencing hearing explicitly indicates that the trial court weighed the factors outlined in

R.C. 2929.12. Specifically, the trial court considered the seriousness of appellant’s

convictions, his acts of violence against others while incarcerated, and the likelihood of

his committing future violent crimes based on his repeated violent and threatening

behavior throughout the trial. Most importantly, however, the trial court carefully

considered appellant’s extensive criminal history:

Now, you had a life time of crime, Mr. Moore. You have been an incordial
[sic] criminal. You have proven yourself, and the Court will take into
consideration the last ten years, your behavior.

You got a file thicker than my knuckles from the county, and the state, from
the people you harmed, and you have been convicted of these.

***
 * * * and you’ve proven yourself to be a dangerous criminal.

I’m looking at everything in your life up through — in your life and I’m
incorporating the arguments I made at the past sentence. I will incorporate
all the points made in the past, and your record which I have gone over in
great detail.

You have caused harm. You have worked with a weapon. You organized
your crime. You have taken the risk in order to achieve these — to reap the
rewards of these crimes with your cohorts, these 14, $15,000 type takings.

You have committed other aggravated robberies — other aggravated
robberies in the same time period. The harm that you have caused to the
victims is great. The harm you caused the community is great.7

In light of these factors, the trial court concluded that consecutive sentences were not

disproportionate to the seriousness of appellant’s conduct. The trial court elaborated:

Your conduct is outrageous and the danger you pose is tremendous to the
public * * *. Any sentence short of the maximum on each would be
insufficient to give you the punishment you deserve, you have earned. You
have demonstrated that you need it. The seriousness of each of these
factors has been considered now outweighs any remote possibility that you
would refrain from future crime. You’re a dangerous walking time bomb
as you showed yesterday again with your violent behavior, and as you have
shown throughout the trial8 and throughout your entire history in this court;

7 In addition to referencing appellant’s past crimes, the trial court also
discussed the crimes he had been convicted of subsequent to the Hard Rock Cafe
robbery, including felonious assault on a corrections officer with a razor (CR-
401325); drug possession (CR-398020); assault on a corrections officer (CR-400978);
aggravated robbery and kidnapping (CR-394297); and assault on a corrections
officer (CR-400093). The trial court ordered appellant’s five year sentence in CR-
401325 to run consecutively to the 33-year sentence imposed in the present case.
Appellant’s remaining convictions were ordered to run concurrently to each other
and with CR-401325.
8 The record reflects that during pretrial hearings, appellant engaged in an

argument with his attorney. During the altercation appellant stated, “With my
hands bitch. With my hands I’m going to fire you.” Upon removing appellant from
the courtroom, the trial court stated on the record that “the defendant has
threatened Mr. Sims’s life. I guess he’s going to choke him, kill him.”
Subsequently, and despite warnings from the court to refrain from improper
 as well as your history in the penitentiary. In order to protect the
community and to give you the sentence you deserve, and nothing short of
it, is maximum consecutive sentence.
{¶139} Given appellant’s documented criminal history and the details of the crime

at hand, I can find no error in the trial court’s conclusions.

{¶140} Despite the trial court’s colloquy, the majority’s opinion relies heavily on

the fact that appellant’s co-defendant, Lamar Chaney, received a nine-year sentence after

accepting a plea agreement. The majority concluded that “the impression is left that

Moore was ‘punished for exercising his right to a jury trial.’” On close review of the

statements made by the trial court at sentencing, I find such a conclusion to be ludicrous.

In support of its position, the majority cites State v. Ambriez, 6th Dist. No. L-03-1051,

2004-Ohio-5230. In Ambriez, the trial court found:

As to * * * whether recidivism is more likely or less likely, the Court finds
that recidivism is more likely because this was committed while you were
under community control sanction in Michigan; you have a history of
criminal convictions; you’ve obviously not responded to sanctions in the
past; there’s no genuine remorse, because we had to proceed to trial; and
obviously with your statement there’s no genuine remorse, all of which
makes recidivism more likely, thus would tip the scales on the side of [sic]
prison term. (Emphasis sic).

The sixth district concluded that the trial court’s statement implied that defendant’s

sentence was partially predicated on the defendant’s decision to exercise his right to a

trial, rendering the sentence unconstitutional and contrary to law.

{¶141} Although Ambriez contains well articulated law, which I concur with, I

find that its holding has no relevance to this case. At no point during appellant’s

outbursts, appellant continued to threaten his attorney, stating, “And when I catch
you on the street, I’m going to * * * And I promise you, I got your address. * * * I’m
sentencing hearing did the trial court state or imply that appellant’s decision to exercise

his right to trial had any bearing on his sentence. Rather, the trial court focused on

appellant’s involvement in the Hard Rock Cafe robbery and his extensive criminal

history.

{¶142} Furthermore, the majority’s discussion of co-defendant Chaney’s sentence

is wholly inappropriate. Although the majority’s opinion acknowledges that Chaney

chose not to exercise his right to a jury trial, it completely ignores the fact that the record

is completely devoid of any details pertaining to Chaney’s sentence or the plea agreement

he made with the state. Importantly, the record does not contain information pertaining

to Chaney’s criminal record, the terms of his plea agreement, any possible sentencing

recommendation made by the state, or even the charges he ultimately pled guilty too.

{¶143} While the majority contends that there are no distinguishing characteristics

to justify the difference between the sentences received by appellant and co-defendant

Chaney, this court cannot make that determination based on the record before us.

Therefore, I believe that any attempt to compare appellant’s sentence to the sentence

received by co-defendant Chaney would be based on pure speculation and unfounded

inferences. See State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228, 903 N.E.2d 676, ¶

11 (10th Dist.). Such an analysis should not support the reversal of appellant’s sentence.

{¶144} In light of the trial court’s extensive discussion relating to the factors it

considered when imposing appellant’s sentence, I find that the trial court more than

adequately followed the statutory process for felony sentencing. The sentence imposed

coming. * * * I’m coming. * * * I’m coming to your house, bitch.”
was within the statutory range for appellant’s felony convictions. The sentencing

guidelines in the state of Ohio have been carefully developed by the legislative branch,

and I cannot find error with a sentence that falls within those statutory parameters and is

supported by the record. Therefore, I would affirm appellant’s sentence. See State v.

Dowell, 8th Dist. No. 88864, 2007-Ohio-5534; State v. Dawson, 8th Dist. No. 86417,

2006-Ohio-1083.