[Cite as State v. Carpenter, 2013-Ohio-1385.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2012-06-041
Plaintiff-Appellee, :
OPINION
: 4/8/2013
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:
DEREK D. CARPENTER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2011 CR659
D. Vincent Faris, Clermont County Prosecuting Attorney, David Henry Hoffman, 123 North
Third Street, Batavia, Ohio 45103, for plaintiff-appellee
Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Derek Carpenter, appeals his conviction and sentence in
the Clermont County Court of Common Pleas for aggravated robbery.
{¶ 2} On November 6, 2009, at about 3:00 a.m., two unidentified individuals robbed
the Thornton gas station on State Route 28 in Miami Township, Ohio. Both individuals wore
hooded sweatshirts, with the hoods pulled down near their eyes, and red bandanas across
their face. One was an African-American male, about six feet tall. He was armed with a
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firearm. The other was a "Mexican-looking," shorter male. Rita Hayes, the store clerk on
duty at the time, was behind the counter. Also present in the store were Michael Young, a
friend of Hayes visiting her, and Greg Mellett, a third-shift employee from a nearby towing
company. Young, who is wheelchair-bound, was in front of the counter. Mellett was in the
back of the store getting ice for his drink.
{¶ 3} According to Young, the two individuals "came storming into the store." While
the shorter individual stood next to Young, the armed individual went behind the counter, put
his right arm around Hayes' neck, held the gun to Hayes' head with his left hand, and
demanded that she open the cash registers. When Hayes could not remember the code to
open the cash registers, the armed individual hit her in the head a couple of times with the
gun. He also struck her once in the side with the gun. Eventually, Hayes was able to open a
cash register. The armed individual took money out of the cash register, dragged Hayes to a
second cash register, which she was able to open, and took money out of it. The two
individuals then fled the store. Unbeknownst to them, Mellett witnessed the robbery and
called 9-1-1 while it was in progress. When the two individuals left the store, Mellett followed
them outside. As they were fleeing, the individuals dropped some money. Mellett observed
the tall, African-American male pick up the money and flee.
{¶ 4} The two individuals were eventually identified as appellant (the tall, African-
American male) and Steven Rider (the "Mexican-looking," shorter male). In August 2011,
appellant was indicted on one count of aggravated robbery, with a firearm specification.
1
During appellant's jury trial, Rider testified on behalf of the state. Hayes, Young, Mellett, and
Detective Robert Bradford of the Miami Township Police Department also testified on behalf
1. In exchange for Rider's cooperation and testimony before a grand jury and at appellant's trial, the state
agreed to amend his original charge of aggravated robbery (a first-degree felony), with a firearm specification, to
a charge of robbery (a third-degree felony), with no firearm specification.
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of the state. Appellant did not present witnesses or testify on his behalf.
{¶ 5} Rider testified that in November 2009, Darrell Mays, Jr. and his girlfriend Angela
Hyden lived together in an apartment complex "right down the road" from the Thornton gas
station. For a few months before November 6, 2009, Rider "hung out" with appellant four or
five times a week, usually in Mays' apartment. Appellant and Mays were "like brothers."
Rider testified that on the evening of November 5, 2009, he, appellant, Mays, Hyden, and a
friend of Rider (Demetri) were in Mays' apartment "drinking, smoking weed, and partying."
{¶ 6} That evening, Rider saw appellant come out of Mays' bedroom, looking
"flustrated." Shortly after, Mays walked by and told appellant "not to puss out." Eventually,
appellant told Rider that he (appellant) and Mays were going to rob the Thornton gas station.
Appellant and Mays subsequently talked about the robbery, with Mays telling appellant that "if
he was going to do it he needed not to puss out. He needed to just go get it done."
Appellant went into Mays' bedroom and retrieved Hyden's gun from the closet. Appellant,
Rider, Demetri, and another individual then drove to the gas station. It was around midnight.
{¶ 7} Because there were too many customers at the gas station, the group
abandoned the plan to rob the store and went back to Mays' apartment where they continued
partying, smoking, and drinking. Appellant was "all pumped up" and eager to go back to the
gas station. Around 3:00 a.m., appellant and Rider walked to the gas station and waited
outside for about 30 minutes for customers to leave. Both were wearing red bandanas;
appellant had the gun. Upon realizing that some of the customers were "just hanging out" at
the store (Mellett's tow truck was parked outside the store), appellant and Rider decided to go
ahead and rob the store.
{¶ 8} Rider next testified about the robbery. His account of the robbery matched for
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the most part Hayes' and Young's testimony.2 Appellant and Rider then fled the store and
went back to Mays' apartment. As they were fleeing, appellant dropped some money. As
appellant picked up the money, Rider noticed that Mellett was looking at them. Back at the
apartment, the money was split between appellant, Rider, and Mays (for providing the gun).
Rider received $147, the other two received a bigger share.
3
{¶ 9} On April 6, 2011, the jury found appellant guilty of aggravated robbery.
Appellant was subsequently sentenced to eight years in prison.
{¶ 10} Appellant appeals, raising four assignments of error. His first and second
assignments of error will be addressed together.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW WHEN IT
FAILED TO SUSTAIN THE APPELLANT'S OBJECTIONS TO THE INVESTIGATIVE
DETECTIVE BEING PERMITTED TO OFFER HIS OPINION AS TO THE APPELLANT'S
TRUTHFULNESS.
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
ALLOWING THE POLICE OFFICER TO TESTIFY TO HIS BODY LANGUAGE.
{¶ 15} Appellant argues the trial court erred in allowing Detective Bradford to testify
about appellant's body language and truthfulness during an interview with the detective.
{¶ 16} During his investigation of the robbery, Detective Bradford interviewed appellant
twice. The audiotapes of the interviews were played to the jury. At trial, the detective testified
2. Young testified that the Mexican-looking, shorter male stood next to him and told him not to move or his life
would be threatened. Rider testified he stood next to Young and told him not to move but denied he threatened
Young.
3. The jury found appellant guilty of aggravated robbery without the firearm specification. The record shows,
and the trial court so noted during the sentencing hearing, that the firearm specification was inadvertently omitted
from the jury instructions and the verdict form.
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about his training with regard to interviewing and interrogating techniques. The detective
stated that "one of the biggest things on interviews isn't so much what people are saying, but
the body language that is associated with what they're saying[.]" The detective explained
that:
[T]raining is teaching us how to read people and, you know,
determine whether or not they're being open with us, or if we're
closing off with somebody, or how to turn the interview. * * * And
it's steering that interview based on their body language to make
sure that we are, you know, getting truthful responses and that
we are getting, you know, and that we are not pushing people the
wrong way, or we're not shutting people down prematurely in an
interview. And a lot of that is based on the body language as
well as the responses they are giving has a lot to do with, you
know, the answers they're giving and the credence you leave to
those answers.
{¶ 17} The detective next testified about appellant's body language during his first
interview. The detective stated that appellant "appeared to be very nervous, especially when
I came to the point of making the accusation of the robbery," "was very standoffish" in his
demeanor, and was "guarded." The detective further stated that appellant
didn't want to answer the questions. Whenever he would answer
the questions they were very self-serving answers. Some of the
answers that were given at first were that he would go into
Thornton's, and then that he wouldn't go into Thornton's. You
know, that he'd only been in there a couple of times. * * * [Y]ou
know, they were very self-serving, very limiting. That in
conjunction with the body language of being kind of standoffish
on answering a question, he's very guarded with that. You know,
it led me to believe that * * * there was some deception there,
and I was not getting the complete truth based upon my training
and experience in interviewing people. I didn't feel like I was
getting complete actual per - - effectual answers.
Defense counsel unsuccessfully objected to the detective's testimony regarding his training in
body language and appellant's body language and truthfulness during the interview.
{¶ 18} Appellant argues Detective Bradford's testimony regarding appellant's body
language and truthfulness was improperly admitted in violation of State v. Boston, 46 Ohio
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St.3d 108 (1989).
{¶ 19} In Boston, the Ohio Supreme Court held that an expert witness may not testify
as to his opinion of the veracity of a witness' statement, and that it was error for the trial court
to admit an expert's testimony that the victim had been truthful. Id. at 128-129. The supreme
court emphasized that "[i]n our system of justice it is the fact finder, not the so-called expert
or lay witnesses, who bears the burden of assessing the credibility and veracity of
witnesses." Id. at 129.
{¶ 20} Subsequently, the supreme court held that "[a] police officer's opinion that an
accused is being untruthful is inadmissible." State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-
2, ¶ 122. Likewise, Ohio appellate courts have applied the Boston rule to police officers,
even when testifying as lay witnesses, because "jurors are likely to perceive police officers as
expert witnesses, especially when such officers are giving opinions about the present case
based upon their previous experiences with other cases." State v. Miller, 2d Dist. No. 18102,
2001 WL 62793, *5 (Jan. 26, 2001). See also State v. Potter, 8th Dist. No. 81037, 2003-
Ohio-1338; State v. Withrow, 11th Dist. No. 2011-A-0067, 2012-Ohio-4887.
{¶ 21} "Boston violations are subject to harmless-error review under Crim.R. 52(A)."
State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, ¶ 108 (6th Dist.). In determining
whether the error was prejudicial or harmless, a reviewing court must read the entire record,
disregarding the objectionable evidence, and then determine whether there was
overwhelming evidence to support the guilty verdict. See Withrow; State v. Davis, 44 Ohio
App.2d 335 (8th Dist.1975).
{¶ 22} We find that the trial court did not err in allowing Detective Bradford to testify
that appellant "appeared to be very nervous," "was very standoffish" in his demeanor, and
was "guarded" during his first interview. The detective observed appellant's behavior and his
testimony was simply a comment about appellant's demeanor during the interview. The
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detective did not testify that he believed appellant was or was not telling the truth. See Davis,
2008-Ohio-2 at ¶ 120; State v. Burchett, 12th Dist. Nos. CA2003-09-017 and CA2003-09-
018, 2004-Ohio-4983, ¶ 20; State v. Adrian, 168 Ohio App.3d 300, 2006-Ohio-4143, ¶ 55 (2d
Dist.); and State v. Whitfield, 2d Dist. No. 22432, 2009-Ohio-293, ¶ 28.
{¶ 23} By contrast, we find that the trial court erred in allowing the detective to testify
that appellant's answers were "very self-serving, very limiting" and that "there was some
deception there" because the detective "was not getting the complete truth" or "effectual
answers." Clearly, such testimony expressed the detective's opinion that appellant was being
untruthful and was erroneously admitted. Davis at ¶ 123.
{¶ 24} Nevertheless, such error does not warrant a reversal of the jury's verdict. A
thorough review of the entire record, disregarding the detective's foregoing testimony, shows
overwhelming evidence of appellant's guilt. First, the testimony of Rider, one of the two
individuals who robbed the gas station, clearly identified appellant as the tall, armed, African-
American male who robbed the gas station alongside Rider. As stated earlier, Rider's
account of the robbery matched what Hayes and Young witnessed and experienced during
the robbery. The armed individual held the gun with his left hand during the entire robbery.
The parties stipulated at trial that a month after the robbery, appellant was seen signing a
form with his left hand.
{¶ 25} Evidence at trial of appellant's height and weight the year before and the year
after the robbery, and a still photo of the armed individual entering the store showed that the
armed individual's height and weight were very similar to appellant's. During his interviews
with Detective Bradford (which recordings were played to the jury), appellant provided
inconsistent statements as to whether and how often he would go to the station, and as to
whether he knew Rider and how often he would see him. Appellant admitted being in Mays'
apartment on November 5, 2009 but denied knowing anything about the robbery and did not
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recall anybody talking about a robbery. Later in the interview, appellant remembered being
at a party and hearing several teenagers say "they were going to go rob somebody, or go sell
some drugs, or something. They just got a little talk about how they was going to get some
money."
{¶ 26} In light of the foregoing evidence, we find that allowing the jury to hear the
detective's testimony regarding appellant's "self-serving, very limiting" and deceptive answers
was harmless.
{¶ 27} Appellant also argues that the detective's interpretation of appellant's reactions
during the interview denied him the right to confrontation in violation of Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). In Crawford, the United States Supreme
Court held that the Confrontation Clause bars "testimonial statements of a witness who did
not appear at trial unless [the witness] was unavailable to testify, and the defendant had a
prior opportunity for cross-examination." Id. at 53–54. Crawford does not apply to the
detective's testimony about appellant's statements because appellant is the accused. Davis,
2008-Ohio-2 at ¶ 127.
{¶ 28} Finally, appellant argues his trial counsel was ineffective because he not only
failed to "make these critical issues abundantly clear" to the trial court, he also
"extensively" cross-examined the detective regarding "his purported expertise in body
language."
{¶ 29} To establish ineffective assistance of counsel, appellant must show that his trial
counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
With respect to deficiency, appellant must show that his counsel's performance "fell below an
objective standard of reasonableness." Strickland at 688. With respect to prejudice,
appellant must show that there is a reasonable probability that, but for his counsel's
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unprofessional errors, the outcome of the proceeding would have been different. Id. at 694.
"A defendant's failure to satisfy one prong of the Strickland test negates a court's need to
consider the other." State v. Madrigal, 87 Ohio St.3d 378, 389 (2000); State v. Gilbert, 12th
Dist. No. CA2010-09-240, 2011-Ohio-4340, ¶ 73.
{¶ 30} We disagree with appellant's assertions that defense counsel failed to "make
these critical issues abundantly clear" to the trial court and "extensively" cross-examined the
detective regarding "his purported expertise in body language." In addition, in light of our
holding that the admission of the detective's testimony was harmless error, we find that
appellant has not met the prejudice prong of the Strickland test. See Davis, 2008-Ohio-2 at ¶
132. Appellant did not receive ineffective assistance of counsel at trial.
{¶ 31} Appellant's first and second assignments of error are overruled.
{¶ 32} Assignment of Error No. 3:
{¶ 33} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S
CONVICTIONS.
{¶ 34} Although appellant's assignment of error asserts that his aggravated robbery
conviction was supported by insufficient evidence and was against the manifest weight of the
evidence (and provides the applicable standards of review), his argument only challenges the
detective's testimony regarding appellant's body language and truthfulness. We choose
substance over form and will address the issues raised in appellant's argument rather than
those raised in his assignment of error. See Elyria v. Tress, 73 Ohio App.3d 5 (9th
Dist.1991).
{¶ 35} Appellant first argues that the trial court erred in allowing the detective to testify
about appellant's body language and truthfulness because such testimony violated
appellant's confrontation rights. We addressed and rejected these issues under appellant's
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first and second assignments of error. Appellant's argument is accordingly not well-taken.
{¶ 36} Appellant also argues that the detective's testimony regarding appellant's body
language was improperly allowed because the detective was never properly established as
an expert in body language in violation of Evid.R. 702. According to appellant, "[n]ot one
scintilla of evidence was offered to establish the Prosecutor's position that the Detective was
an expert in testifying to the Appellant's body language."
{¶ 37} Appellant's argument is not well-taken. The state never offered the detective as
an expert in body language. The trial court specifically found that the detective was not an
expert. The court also indirectly found that because the detective was testifying as a
layperson, his testimony about appellant's body language was admissible. Thus, Evid.R. 702
is not applicable. The detective did not provide expert testimony. Rather, he testified about
his training and experience in conducting interviews, specifically including what matters to
observe. He then testified about his observations of appellant during the interviews. The
detective observed appellant, and appellant's demeanor was relevant in showing his
evasiveness and reticence. See Davis, 2008-Ohio-2 at ¶ 120 (finding that a detective's
testimony about a defendant's reaction during an interview satisfied both requirements of
Evid.R. 701 and was admissible as lay opinion).
{¶ 38} Appellant's third assignment of error is overruled.
{¶ 39} Assignment of Error No. 4:
{¶ 40} THE TRIAL COURT ERRED IN IMPOSING AN EIGHT YEAR SENTENCE
FOR THE CONVICTIONS HEREIN.
{¶ 41} Appellant argues that because the trial court acknowledged during the
sentencing hearing that it could not predict appellant's future behavior and likelihood of
recidivism based on his criminal record, the trial court abused its discretion in sentencing him
to eight years in prison.
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{¶ 42} Appellate courts apply a two-step procedure when reviewing felony sentences.
First, an appellate court must review the sentence to determine whether the sentence is
clearly and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
¶ 26. If this first prong is satisfied, the sentencing court's decision is then reviewed for an
abuse of discretion. Id. at ¶ 4. An abuse of discretion implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Jackson, 107 Ohio St.3d 53, 2005-
Ohio-5981, ¶ 181.
{¶ 43} Under the first prong of Kalish, a sentence is not clearly and convincingly
contrary to law where the trial court considers the purposes and principles of sentencing
under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12,
properly applies postrelease control, and sentences a defendant within the permissible
statutory range. Kalish at ¶ 18; State v. Jones, 12th Dist. No. CA2012-03-049, 2013-Ohio-
150, ¶ 48.
{¶ 44} Upon review of the record, we find that appellant's sentence is not contrary to
law. The trial court stated it considered the purposes and principles of sentencing under R.C.
2929.11 and balanced the seriousness and recidivism factors listed in R.C. 2929.12. Kalish,
2008-Ohio-4912 at ¶ 18. Moreover, the trial court properly applied postrelease control and
sentenced appellant within the applicable statutory range.
{¶ 45} We further find that the trial court did not abuse its discretion in sentencing
appellant to eight years in prison. Appellant is correct that during the sentencing hearing, the
trial court acknowledged that appellant's criminal record was not a good predictor of his
likelihood of recidivism, unlike other offenders. However, the trial court also emphasized the
seriousness and egregiousness of the offense, regardless of whether the gun was unloaded,
the fact the robbery was calculated, and the physical harm and serious psychological harm
suffered by Hayes. The trial court also considered appellant's juvenile criminal record which
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revealed he was adjudicated delinquent multiple times, his criminal record as an adult, and
the fact he was under "some form of community control" at the time he committed the
robbery.
{¶ 46} In light of the foregoing, appellant's fourth assignment of error is overruled.
{¶ 47} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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State v. Carpenter
Combined Opinion