[Cite as State v. White, 2011-Ohio-5835.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96355
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS WHITE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-539440
BEFORE: Jones, J., Kilbane, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant County Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Defendant-appellant, Demetrius White, appeals his conviction, which was
rendered after a jury trial. We affirm in part, reverse in part, and remand for
resentencing.
I. Procedural History and Facts
{¶ 2} White was indicted in July 2010 on the following charges: Count 1,
aggravated burglary; Count 2, domestic violence (victim Latoya Gates); Count 3, assault
(victim Shatima Moore); Count 4, robbery (victim Shatima Moore); Count 5, robbery
(victim Latoya Gates); Count 6, theft (victim Shatima Moore); Count 7, theft (victim
Latoya Gates); and Counts 8 and 9, intimidation of crime victim or witness.
{¶ 3} Prior to trial, the state dismissed Counts 8 and 9, intimidation of crime
victim or witness. A jury trial on the remaining counts commenced on October 25,
2010. Voir dire was completed, preliminary instructions were given to the jury, and then
the court recessed for the day, instructing the parties and jury that the case would continue
the following day. White failed, however, to return for trial the following day, his
whereabouts were unknown, and efforts to locate him were unavailing. The trial
proceeded in his absence.
{¶ 4} There were two victims in this case, Latoya Gates and Shatima Moore.
Gates and Moore were friends, and at the time of the incident Gates and her two children
were living with Moore. White is the father of Gates’s children. White and Gates
communicated only as was necessary for the care of their children.
{¶ 5} The incident occurred on July 4, 2010. According to Gates, she had to be
to work at 7:00 a.m. that day, so she asked White to get the children from Moore’s house
because her usual daycare provider was not available due to the holiday. White arrived
sometime in the 5:00 a.m. hour and Gates let him into the house. Gates and her children
were sleeping in the living room, while the other occupants of the house — Moore,
Moore’s boyfriend, Moore’s children, and Moore’s brother — were sleeping upstairs.
Gates testified that she did not expect White to come so early, so she needed a few
minutes to get the children ready.
{¶ 6} According to Gates, while she was attempting to get the children ready,
Moore’s brother came downstairs and into the living room. This upset White, who
believed that Gates was involved in a relationship with the brother with his children
around. The brother and White had words and when Gates attempted to intervene,
White pushed Gates, who, in attempting to break her fall, caused a “commotion.”
{¶ 7} The noise awakened Moore and she came downstairs. Moore testified that
she told White he did not have permission to be in her house and ordered him to leave.
White angrily told Moore that he was not leaving. Moore called the police. Moore and
Gates’s testimony as to when the police were called differed. Moore testified that after the
defendant told her he was not leaving she got her cell phone to call the police while White
was still in the house. At trial, Moore listened to a tape of the 911 call and testified that
a voice heard in the background was White’s voice. According to Gates, however,
White left the house before Moore called the police.
{¶ 8} The police arrived, listened to Gates and Moore’s accounts of what had
happened, and left. Moore testified that at that time she had the front door open, but the
screen door locked. Both women testified that shortly after the police left, White
returned and re-entered the house. Moore described that he “barged through” the screen
door. Both women testified that White was angry and yelling at Moore about her having
called the police. Moore had her cell phone in hand and White grabbed her hand and
retrieved it from her. Moore testified that White twisted her wrists in the process and
hurt her.
{¶ 9} Gates intervened. White took Gates’s cell phone too, and repeatedly
punched her head and face, causing her to bleed. Moore testified that she did not have a
land line, and because White had both hers and Gates’s cell phones, she ran to a
neighbor’s house and called the police. While at the neighbor’s house, Moore saw
White jump over the side of her porch and run through her backyard.
{¶ 10} The police returned and after getting the women’s accounts of the incident
left in search of White. White was apprehended a few hours later. In a statement to the
police, White admitted to being at Moore’s house to get his children and to having a
verbal disagreement with Gates, but denied that his interaction with anyone in the house
was physical.
{¶ 11} Upon that evidence, the jury returned the following verdict: guilty of
criminal trespass under Count 1; guilty of domestic violence under Count 2; guilty of
assault under Count 3; guilty of robbery under Count 4; not guilty of robbery under Count
5; guilty of theft under Count 6; and not guilty of theft under Count 7. White was
sentenced to a two-year prison term, which consisted of two years on the robbery count to
run concurrently with six months on the remaining counts.
{¶ 12} White raises the following assignments of error for our review:
“I. The trial court violated Mr. White’s Sixth Amendment rights to a fair trial by
a fair and impartial jury and to the presumption of innocence by improperly giving
the jury a ‘flight’ instruction.
“II. The jury’s improper exposure to prejudicial information violated Demetrius
White’s rights to due process and a fair trial.
“III. The trial court erred at sentencing by failing to merge the theft count with
the robbery count and by imposing concurrent sentences on both.”
II. Law and Analysis
A. Flight Instruction
{¶ 13} At trial, over the defense’s objection, the court gave the jury a flight
instruction. White’s first assignment of error challenges that instruction.
{¶ 14} We review a trial court’s issuance of a jury instruction for an abuse of
discretion. State v. Williams, Cuyahoga App. No. 90845, 2009-Ohio-2026, ¶50. Further,
jury instructions are reviewed in their entirety to determine if they contain prejudicial
error. State v. Fields (1984), 13 Ohio App.3d 433, 436, 469 N.E.2d 939. Flight from
justice may be indicative of a consciousness of guilt. State v. Taylor, 78 Ohio St.3d 15,
27, 1997-Ohio-243, 676 N.E.2d 82. However, “a mere departure from the scene of the
crime is not to be confused with a deliberate flight from the area in which the suspect is
normally to be found.” State v. Norwood (Sept. 30, 1997), Lake App. Nos. 96-L-089 and
96-L-090.
{¶ 15} White argues that the instruction was improper because it was not supported
by the evidence. We disagree. In regard to the first time White came to the house,
although Gates testified that he left prior to Moore calling the police, Moore testified that
after White refused to leave, she called the police while he was still in the house. In
fact, Moore testified that White’s voice can be heard on the tape of the first 911 call.
That evidence was sufficient evidence that White fled the scene knowing that the police
were coming.
{¶ 16} Moreover, in regard to the second time White came to the house, both
women testified that White angrily entered the house, yelling about Moore having called
the police. White then proceeded to take both women’s cell phones and after Moore left
the house to call the police from a neighbor’s house, she saw White jump over the side of
her porch and run through her backyard.
{¶ 17} On this record, there was sufficient evidence to support the state’s theory
that White fled from the scene of the crime and the flight instruction, therefore, was not
an abuse of discretion. The first assignment of error is overruled.
B. Motion for Mistrial
{¶ 18} In his second assigned error, White contends that “extrajudicial
information” violated his due process and fair trial rights. The testimony White
complains of was elicited upon direct examination by the state of a police officer. The
officer testified that a firearm was recovered during the search of White’s van after his
arrest. The defense objected and requested a mistrial. The assistant prosecuting
attorney stated that the officer had been instructed prior to his testimony to not reference
the discovery of the firearm. The trial court denied the defense’s mistrial motion, but
instructed the jury not to consider the offending testimony.
{¶ 19} The standard of review for evaluating the trial court’s decision on a motion
for a mistrial is an abuse of discretion. Cleveland v. Gonzalez, Cuyahoga App. No.
85070, 2005-Ohio-4413, ¶44, citing State v. Sage (1987), 31 Ohio St.3d 173, 182, 510
N.E.2d 343.
{¶ 20} A mistrial should not be ordered in a criminal case merely because some
error or irregularity has occurred, unless the substantial rights of the accused or the
prosecution are adversely affected, and this determination is made at the discretion of the
trial court. State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490. The
granting of a mistrial is only necessary when a fair trial is no longer possible. State v.
Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, citing Illinois v. Somerville
(1973), 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425. Thus, the essential
inquiry on a motion for mistrial is whether the substantial rights of the accused or the
prosecution are adversely or materially affected. State v. Goerndt, Cuyahoga App. No.
88892, 2007-Ohio-4067, ¶21.
{¶ 21} The challenged testimony was as follows:
“Q. And did you or were you responsible for the transport of the suspect back to
CPU, if you recall?
“A. I don’t really remember if we took him or if another car took him. I think
we took — we found the firearm. We took that back to the district.”
{¶ 22} Upon review, the trial court did not abuse its discretion by denying the
defense’s motion for mistrial based on the above-cited testimony. The singular
reference to the firearm did not compromise White’s substantial rights, especially in light
of the fact that the trial court gave a curative instructive to the jury. Jurors are presumed
to understand and follow the instructions of the court. State v. Lessin, 67 Ohio St.3d
487, 493, 1993-Ohio-52, 620 N.E.2d 72.
{¶ 23} The second assignment of error is overruled.
C. Merger
{¶ 24} In his final assignment of error, White contends that his convictions of
robbery in Count 4 and theft in Count 6 should have merged. The state agrees, and we
do as well.
{¶ 25} The Ohio Supreme Court’s most recent pronouncement on allied offenses is
found in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
wherein the Court held: “When determining whether two offenses are allied offenses of
similar import subject to merger under R.C. 2941.25, the conduct of the accused must be
considered.” Id. at the syllabus.
{¶ 26} White was found guilty of robbery under R.C. 2911.02(A)(2), which
provides that “[n]o person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten
to inflict physical harm on another[.]” White was also found guilty of theft under R.C.
2913.02(A)(1), which provides that “[n]o person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services * * * [w]ithout the consent of the owner or person authorized to give consent[.]”
{¶ 27} White committed the theft and robbery offenses against Moore at the same
time and with the same conduct. In other words, in terms of the theft and robbery
committed against Moore, White engaged in a single act with a single state of mind. On
this record, therefore, the robbery and theft convictions should have merged.
{¶ 28} Accordingly, the third assignment of error is sustained and the judgment is
reversed on this assignment of error and remanded for resentencing.
III. Conclusion
{¶ 29} The trial court did not abuse its discretion by instructing the jury on flight or
by denying White’s motion for a mistrial. The court did err by not merging the charges
of robbery under Count 4 and theft under Count 6.
{¶ 30} Accordingly, the judgment is affirmed in part, reversed in part, and
remanded for resentencing.
It is ordered that appellant and appellee split the 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.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and
PATRICIA A. BLACKMON, J., CONCUR