[Cite as State v. Bates, 2015-Ohio-116.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140033
TRIAL NO. B-1302293
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KEVIN BATES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Appellant
Discharged in Part.
Date of Judgment Entry on Appeal: January 16, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Faruki Ireland & Cox P.L.L. and Jeffrey W. DeBeer, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Kevin Bates was the target of a police sting operation. Hoping to arrest
Mr. Bates for illegal gun sales, police arranged for a confidential informant to buy
firearms from Mr. Bates. But the gun sale never happened; instead, the informant was
robbed by two armed men.
{¶2} This course of events led to a jury convicting Mr. Bates of aggravated
robbery, as well as carrying a concealed weapon, having a weapon while under a
disability and improperly handling a firearm in a motor vehicle. In this appeal, Mr.
Bates raises three assignments of error. The first questions various evidentiary decisions
of the trial court, the second challenges the weight and sufficiency of the evidence
against him, and the third contends that the trial court should have merged the
convictions.
{¶3} We find no merit to the evidentiary or merger arguments. But we do
conclude that one of the convictions—carrying a concealed weapon—was against the
weight and sufficiency of the evidence. Although Mr. Bates had a weapon when he was
stopped by undercover officers, there is no evidence that it was concealed. Thus, we
reverse the conviction for carrying a concealed weapon and affirm the judgment of the
trial court in all other respects.
I. A Robbery Instead of a Gun Sale
{¶4} Timothy Johnson was working as a confidential informant for the
Cincinnati police. Following the instructions of his police handlers, he arranged to
purchase three firearms from Kevin Bates, a man whom Mr. Johnson had identified to
the police as a “gun guy.” The sale was to take place at a gas station. To facilitate the
deal, Officer Howard Fox supplied Mr. Johnson with over $300 that had previously
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OHIO FIRST DISTRICT COURT OF APPEALS
been photocopied by the police. Mr. Johnson was also equipped with a police-provided
cell phone and a hidden video recorder.
{¶5} When it came time for the deal, Mr. Bates told Mr. Johnson that the gas
station was too busy, so he drove Mr. Johnson to a side street. When they arrived, Mr.
Bates left the car saying he needed to get the firearms from his girlfriend’s apartment.
{¶6} Mr. Johnson waited in Mr. Bates’s parked car. After some time, Mr.
Bates called to say that he was on his way back from his girlfriend’s apartment. Minutes
later, two men with guns approached the car. The hidden video recorder captured the
incident. The men searched Mr. Johnson and threatened to shoot him. In addition to
taking money and two cell phones from Mr. Johnson, the men discovered the video
recorder, ripped it from his body and discarded it.
{¶7} Some ten to 15 minutes later, Mr. Bates came back to the car, and Mr.
Johnson told him that he had been robbed. Notably, Mr. Bates did not have firearms
with him when he returned to the car. Mr. Bates then drove Mr. Johnson back to the gas
station and left him, telling him he would find out who had committed the robbery.
{¶8} Back at the gas station, Mr. Johnson told Officers Fox and Rebecca
Napier that he had been robbed. The police officers issued a description of Mr. Bates’s
car. Officers in two unmarked police cars tailed Mr. Bates. Officer Joshua Fehrman,
who was in an unmarked SUV, testified that he saw Mr. Bates pull over to allow two men
to get into his car. Eventually, the two unmarked police cars managed to stop Mr.
Bates’s car.
{¶9} Officer Steve Mittermeier was in the other unmarked car. He testified
that as he and Officer Charles Bell walked up to the car with their weapons drawn, he
spotted Mr. Bates in the driver’s seat, pointing a gun at him. Officer Mittermeier stated
that the gun went “across the dashboard” and disappeared from sight. Officer Bell
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that he also saw Mr. Bates pointing a gun at him as the officers approached the
car.
{¶10} Mr. Bates and his two passengers, later identified as Harold Chandler
and Tywon Reliford, were removed from the car. A weapon was found in Mr. Chandler’s
waistband, and Officer Mittermeier retrieved a revolver from the floor of the car under
the steering wheel. In addition, police officers recovered all but a $20 bill of the money
that had been photocopied earlier by Officer Fox. Mr. Johnson later identified Messrs.
Chandler and Reliford as the men who had robbed him.
{¶11} In his statement to police officers, Mr. Bates admitted that he had
arranged a gun sale with Mr. Johnson. But he denied that he had set up the robbery.
Messrs. Chandler and Reliford told a different story. Both testified that Mr. Bates had
orchestrated the robbery. Mr. Reliford stated that Mr. Bates had provided both guns
that were used in the robbery, while Mr. Chandler only could be certain that his gun had
been provided by Mr. Bates. The stories of all the men differed on details about who
knew whom first, who was in the car first and where the guns were handed to Messrs.
Chandler and Reliford.
{¶12} Mr. Bates was indicted for aggravated robbery with firearm
specifications, robbery, carrying a concealed weapon, having a weapon while under a
disability, improperly handing a firearm in the car and felonious assault. The jury found
him guilty of all the charges except felonious assault. The trial court merged the
aggravated-robbery count with the robbery count and sentenced Mr. Bates to an
aggregate sentence of 16 years in prison.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Evidentiary Issues
{¶13} In his first assignment of error, Mr. Bates asserts that the trial court
erred when it allowed the jury to hear inadmissible and highly prejudicial evidence
about his character.
{¶14} Mr. Bates contends that the court erred when it told the jury that he had
previously been convicted of felony robbery. But Mr. Bates’s counsel agreed to a written
stipulation that specified that Mr. Bates had been convicted of felony robbery, and did
not object when the assistant prosecuting attorney read the stipulation into the record
before offering it as an exhibit. The court’s statement during jury instructions was taken
directly from the stipulation. Any error in reading the stipulation to the jury was invited
error. See State v. Eichelbrenner, 1st Dist. Hamilton No. C-110431, 2013-Ohio-1194, ¶
15.
{¶15} Mr. Bates also argues that the trial court allowed in inadmissible other-
acts testimony. Specifically, he complains about three sets of statements—statements
that he made to Mr. Johnson while they were in Mr. Bates’s car, statements that he
made during a police interview with Officers Napier and Mittermeier and statements
that Officer Napier made during the interview.
{¶16} While in the car with Mr. Johnson, Mr. Bates mentioned that he was on
“federal paper” (slang for being charged with a federal crime) and that he had sold
ammunition to another person. During the police interview, Mr. Bates, presumably
trying to convince the officers that he wanted to work with them, stated that he was a
“f**ked up person” and that he knew of an upcoming transaction involving many
firearms. In addition, he claims that the court allowed inadmissible other-acts
testimony when Officer Napier repeatedly referred to him as a “gun guy.” Mr. Bates did
not object at trial, so we review for plain error. See Crim.R. 52(B). But all these
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OHIO FIRST DISTRICT COURT OF APPEALS
statements concerning his prior gun dealings about which Mr. Bates now complains
corroborated his claim that he was a middleman who set up the gun sale with Mr.
Johnson but not the robbery. We conclude that Mr. Bates has not demonstrated “that
the outcome of the trial would clearly have been different but for the trial court's
allegedly improper actions.” See State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d
1043 (1996).
{¶17} Mr. Bates also argues that the state improperly elicited testimony that he
had been incarcerated pending trial. Mr. Bates complains of two specific instances of
improper testimony. The first occurred when the state asked Officer Fox if Mr. Johnson
had been housed in the Hamilton County Justice Center with Mr. Bates. Officer Fox
responded that he had been informed that they were housed together, and that he had
asked that Messrs. Bates, Chandler and Reliford be separated in the justice center. Mr.
Bates did not object to Officer Fox’s testimony. He has not demonstrated that the
outcome of the trial would have been different had the testimony not been elicited, so we
find no plain error. The other instance cited by Mr. Bates occurred when the state asked
Officer Napier if Mr. Bates had been housed with Mr. Johnson. The court sustained Mr.
Bates’s objection and told the jury to disregard the question and the answer. We
presume that the jury followed the court’s instruction and conclude that no reversible
error occurred. See State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994).
{¶18} Within his first assignment of error, Mr. Bates also asserts that he was
denied a fair trial due to prosecutorial misconduct, that he was denied the effective
assistance of counsel and that his convictions should be reversed due to cumulative
error. None of these assertions is well-founded.
{¶19} Mr. Bates did not object to the alleged instances of prosecutorial
misconduct, so we review for plain error. See Crim.R. 52(B). Mr. Bates maintains that
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OHIO FIRST DISTRICT COURT OF APPEALS
the assistant prosecuting attorney improperly elicited testimony from Officer Napier
that Mr. Bates was a gun guy. We conclude that there was no misconduct in eliciting
this testimony. Officer Napier’s statements were made as she told how Mr. Johnson
became a confidential informant for the officers based on his claim that he knew a gun
guy from whom he could buy guns. Further, any prejudicial effect of Officer Napier’s
statements was blunted by Mr. Bates’s concession that he had arranged the gun deal.
{¶20} Mr. Bates also takes issue with the assistant prosecuting attorney’s
comments during the state’s opening statement that he was going to be speaking about a
“rough and tough world” full of “rough and tough people” not “choir boys and choir
girls.” We conclude that these comments, made to introduce the involvement of Mr.
Johnson as a confidential informant, were not improper.
{¶21} Nor has Mr. Bates demonstrated that his counsel was ineffective for
failing to object to prejudicial evidence. As discussed above, much of the evidence to
which Mr. Bates now objects played into his defense narrative that he had set up the gun
sale but not the robbery. We will not second guess counsel’s decision not to object to the
evidence. To the extent that some of the evidence was objectionable, we are unable to
say that, on the record before us, the result of the trial would have been different had
counsel objected. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶22} Finally, we conclude that Mr. Bates was not deprived of a fair trial as the
result of the cumulative effect of any errors. The first assignment of error is overruled.
III. Sufficiency and Weight of the Evidence
A. Aggravated Robbery
{¶23} Mr. Bates’s second assignment of error is that his convictions were
against the weight and sufficiency of the evidence. He argues that his conviction for
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OHIO FIRST DISTRICT COURT OF APPEALS
aggravated robbery was based in large part on the testimony of Messrs. Chandler and
Reliford, who, in Mr. Bates’s view, did not give credible testimony. As to the sufficiency
argument, our review of the record reveals that the state adduced substantial,
credible evidence from which the jury could have reasonably concluded that the state
had proved beyond a reasonable doubt the elements of complicity to aggravated
robbery. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two
of the syllabus. And our review of the entire record fails to persuade us that the jury
clearly lost its way and created such a manifest miscarriage of justice that we must
reverse Mr. Bates’s conviction for aggravated robbery and order a new trial. See State
v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). It was for the
jury to assess the witnesses’ credibility and the video evidence.
B. Weapon Under a Disability and Improper Handling of a Firearm
{¶24} Likewise, the state presented more than sufficient evidence to support
the convictions for having a weapon while under a disability and improperly handling a
firearm. As discussed above, Mr. Bates stipulated to his disability—a prior conviction for
felony robbery. According to the testimony of Messrs. Chandler and Reliford, Mr. Bates
possessed at least one gun, which he provided to them to carry out the robbery. Also,
both Officer Mittermeier and Officer Bell testified that they saw a revolver in Mr. Bates’s
hand as they approached his car. Additional evidence of the improperly-handling-a-
firearm offense was presented in testimony that a gun that had been provided by Mr.
Bates was found in the waistband of his passenger. See R.C. 2923.16(B). Neither of the
convictions was against the manifest weight of the evidence.
C. Carrying a Concealed Weapon
{¶25} The conviction for carrying a concealed weapon, however, is a different
matter. R.C. 2923.12(A)(2) makes it a crime for a person to “knowingly carry or have,
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OHIO FIRST DISTRICT COURT OF APPEALS
concealed on the person's person or concealed ready at hand” a handgun. A
handgun is concealed if it is “so situated not to be discernible by ordinary
observation by those near enough to see it if it were not concealed[.]” State v. Davis,
15 Ohio App.3d 64, 64-65, 472 N.E.2d 751 (1st Dist.1984), quoting State v. Pettit, 20
Ohio App.2d 170, 173-174, 252 N.E.2d 325 (4th Dist.1969). Here, the state presented
no evidence that the gun was concealed. Officer Mittermeier testified that he saw the
gun as he was approaching Mr. Bates’s car, and that the gun then went “across the
dashboard and then down behind the steering wheel.” He later stated that he
recovered the gun from the floor of the car. Missing from the testimony was any
indication about whether the gun, as it lay on the floor of the car, was “so situated
not to be discernible by ordinary observation.” Absent this evidence, the state did
not present sufficient evidence of the concealment element. Thus we sustain Mr.
Bates’s second assignment of error as it pertains to the carrying-a-concealed-weapon
offense. That conviction is reversed. In respect to the other convictions, the second
assignment of error is overruled.
IV. Allied Offenses
{¶26} In his third assignment of error, Mr. Bates asserts that the court erred
when it failed to merge his convictions as allied offenses. He contends that the trial
court’s imposition of separate sentences for each of the offenses violated the Double
Jeopardy Clause of the Fifth Amendment, and the corresponding Double Jeopardy
Clause of the Ohio Constitution, Article I, Section 10.
{¶27} The Double Jeopardy Clauses “protect a defendant against a second
prosecution for the same offense after acquittal, a second prosecution for the same
offense after conviction, and multiple punishments for the same offense.” State v.
Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 6, citing North
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OHIO FIRST DISTRICT COURT OF APPEALS
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Here,
Mr. Bates argues that he was subjected to multiple punishments for the same
offense. “However, ‘[w]ith respect to cumulative sentences imposed in a single trial,
the Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.’ ” Miranda, supra,
quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
The question, then, is whether the legislature intended to permit multiple
punishments for the offenses. Id. To answer that question, we look first to R.C.
2941.25. Id. at ¶ 7.
{¶28} Under R.C. 2941.25(A), a defendant may be convicted of only one of
two or more allied offenses of similar import. But if the offenses are of dissimilar
import or are committed separately or with a separate animus, the defendant may be
convicted of all of them. R.C. 2941.25(B). Courts employ a two-prong test to
determine if offenses are subject to merger. Under the first prong, courts must
determine whether the offenses are of a similar import. State v. Washington, 137
Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 13-15. In making this
determination, a court must consider conduct of the accused. Id. at ¶ 15; State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Under the second
prong, a court must consider whether the offenses were committed separately or
with a separate animus. Washington at ¶ 16. In other words, offenses will not
merge if they were “committed separately,” share a dissimilar import or were
committed with a separate animus. Id. at ¶ 12.
{¶29} In Miranda, the court explained that “ ‘R.C. 2941.25 * * * is not the
sole legislative declaration in Ohio on the multiplicity of indictments[,]’ ” and
multiple punishments may be imposed when it is clear from an examination of the
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OHIO FIRST DISTRICT COURT OF APPEALS
statute of the offense that the legislature intended separate punishments. Miranda
at ¶ 10. The concurring opinion emphasized that when the legislature intends
separate punishments, the offenses are of dissimilar import. Miranda at ¶ 25-26
(Lanzinger, J., concurring). Offenses are of dissimilar import and separate punishment
is intended where they “are not alike in their significance and their resulting harm.” Id.
at ¶ 25.
{¶30} Here, the weapons-under-a-disability charge is of a dissimilar import
from the other offenses because the statute manifests a legislative purpose to punish the
act of possessing a firearm while under a disability separately from any offense
committed with the firearm. Thus, the offenses were not subject to merger.
{¶31} Further, even absent our analysis of their import, we would conclude
that the offenses should not have merged here. The evidence submitted at trial
demonstrates that the offenses were separately committed. The weapons-under-
disability crime was established by testimony from Messrs. Reliford and Chandler that
Mr. Bates provided them with firearms so that they could rob Mr. Johnson. Mr. Bates
necessarily, then, possessed a gun while under a disability prior to the robbery. The
subsequent aggravated robbery was a separate act in which Mr. Bates was complicit.
Finally, the improperly-handling-a-weapon offense occurred later when Mr. Bates was
stopped by the police with at least one gun ready at hand in his car following the
robbery. The trial court did not err when it did not merge the convictions for sentencing.
The third assignment of error is overruled.
{¶32} Mr. Bates’s conviction for carrying a concealed weapon is reversed and
he is discharged as to that count. We modify the sentencing entry to reflect the reversal
of that conviction and the vacation of the sentence imposed on that count. Because the
trial court ran the vacated sentence concurrent with the improper-handling-of-a-firearm
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence, the aggregate sentence is unchanged. In all other respects, the judgment of
the trial court is affirmed.
Judgment accordingly.
F ISCHER , P.J., and C UNNINGHAM , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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State v. Bates
Combined Opinion