[Cite as State v. Thompkins, 2017-Ohio-1061.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160384
TRIAL NO. B-1503766
Plaintiff-Appellee, :
vs. : O P I N I O N.
DEVONTE THOMPKINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 24, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Devonte Thompkins appeals from the judgment
of the Hamilton County Common Pleas Court convicting him of two counts of
aggravated robbery and a firearm specification. He was convicted after a bench trial.
Finding no merit to his assignments of error, we affirm the trial court’s judgment.
Background Facts
{¶2} As she worked the night shift at the front desk of a hotel, Janet Lawson
noticed two juveniles and a man sitting at a bus stop across the street. After a while,
the juveniles came into the hotel to ask if their mother was there. Lawson noticed
that they were looking around at the security cameras and she asked them to leave.
{¶3} A few hours later, Lawson heard the hotel’s front door slam open and
saw the two juveniles leap toward her over the front desk. One held a gun to her
head as they demanded money. Lawson believed the gun was real because she heard
the juvenile “rack” it. While that person followed her at gunpoint to the back room
and stole her cell phone, the other person leaned over the front desk to look back
toward the front door, where the third individual was standing. The juveniles
grabbed the money from the hotel’s cash register, leaped back over the desk, and ran
out the front door.
{¶4} A police officer responding to the incident went directly to the Gateway
Plaza, a two-building apartment complex located at the opposite end of a footbridge
from the hotel. Security footage at Gateway Plaza showed three males, an adult and
two juveniles, leave the property’s garage and walk westbound toward the hotel. The
three males matched the descriptions of the robbery suspects.
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{¶5} The officer then reviewed the hotel’s security footage and recognized
the robbers as the juveniles he had seen with the adult on the Gateway Plaza security
footage. Shortly thereafter, a Gateway Plaza security guard called to inform the
officer that one of the juveniles had just entered an apartment at the complex.
{¶6} When police officers went to that apartment, Thompkins answered the
door and acknowledged that it was his apartment. Thompkins denied that anyone
else was in the apartment, other than his sleeping baby girl. However, at an officer’s
request for individuals inside the apartment to identify themselves, the juveniles who
had robbed the hotel came out of the apartment. The juveniles were 16-year-old I.G.
and 14-year-old T.M.
{¶7} A search warrant for Thompkins’s apartment was obtained and
executed. Police found the hotel clerk’s cell phone in Thompkins’s bedroom, lodged
between his mattress and box spring. They found the hotel’s cash stuffed under
some clothing inside a bag in his bedroom closet. They found a gun holster and a
box of ammunition in the living room.
{¶8} Thompkins was indicted for two counts of aggravated robbery with
firearm specifications and two counts of robbery, related to thefts of property from
the hotel and from the hotel clerk.
{¶9} At trial, I.G. testified that he and T.M. met Thompkins at Gateway
Plaza, where they decided that Thompkins would act as a lookout while I.G. and T.M.
ran in to rob the hotel. According to I.G., he and T.M. ran to Thompkins’s apartment
after the robbery. When Thompkins got back to the apartment, the three of them
counted the money from the robbery before the police arrived.
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{¶10} Thompkins testified that he, T.M., and I.G. walked to the gas station
across the street from the hotel. He said that T.M. told him that he was going to the
hotel to see his mother. According to Thompkins, he stood outside the hotel while
T.M. and I.G. went inside, because he was smoking a cigar, “and you can’t smoke in
the building at all.” He said that the juveniles came running out of the hotel and ran
back towards the Gateway Plaza.
{¶11} Thompkins testified that when he saw them running away, “I was
thinking why they running? Like I was thinking, well, they young, so they probably
running. I don’t know. But I started to head home * * *. That’s the same way they
ran, so I just walked away.”
{¶12} Thompkins said that T.M. and I.G. were at his apartment when he
returned. He said that they showed him cash and told him that they had just robbed
the hotel. According to Thompkins, he told them to leave and began to argue with
them just as the police arrived. He claimed that he had immediately told police that
four or five people were in the apartment. Thompkins acknowledged that he did not
tell the police that T.M. and I.G. had just robbed the hotel, but Thompkins asserted,
he did not “have a chance to. * * * It all happened so fast.”
{¶13} At the conclusion of the trial, the court found Thompkins guilty as
charged. The court merged the robbery counts with the respective aggravated-
robbery counts and merged all the firearm specifications into one specification. The
court imposed concurrent six-year prison sentences for the two aggravated-robbery
convictions, and a consecutive three-year prison term for the firearm specification.
Thompkins now appeals.
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OHIO FIRST DISTRICT COURT OF APPEALS
The Prosecutor’s Use of Impeachment Evidence
{¶14} In his first assignment of error, Thompkins argues that the trial court
erred by permitting the state to impeach its own witness with a prior inconsistent
statement. He concedes that he failed to object to the impeachment, so he has
forfeited all but plain error. See State v. Neal, 1st Dist. Hamilton No. C-140667,
2015-Ohio-4705, ¶ 45.
{¶15} To demonstrate plain error, an appellant must show that an error
occurred, that the error was an obvious defect in the trial proceedings, and that the
error affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642, 873 N.E.2d 306, ¶ 16, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶16} Under Evid.R. 607(A), a party may attack its own witness’s credibility
with a prior inconsistent statement only upon a showing of surprise and affirmative
damage. State v. Hancock, 1st Dist. Hamilton No. C-030459, 2004-Ohio-1492, ¶ 36.
Surprise exists where a witness’s testimony materially differs from a prior statement
and counsel had no reason to believe that the witness would recant at trial. State v.
Holmes, 30 Ohio St.3d 20, 23, 506 N.E.2d 204 (1987). The determination of
surprise is left to the trial court’s sound discretion. Hancock at ¶ 37; State v. Diehl,
67 Ohio St.2d 389, 391, 423 N.E.2d 1112 (1981). Affirmative damage occurs where a
witness testifies to facts that contradict, deny, or harm the party’s trial position.
State v. Seay, 1st Dist. Hamilton No. C-040763, 2005-Ohio-5964, ¶ 43.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} As an initial matter, we note that there is some confusion in the record
between references to Thompkins’s apartment complex (Gateway Plaza) and his
actual apartment within that complex. The prosecutor asked I.G., “This apartment,
at the Gateway Plaza that you were arrested in, had you ever been there before?” I.G.
responded, “No, sir.” Believing that I.G. had given a contradictory statement to
police, the prosecutor used his prior statement to impeach him. I.G. had told the
officers that on that night prior to the robbery he had been at Devonte Thompkins’s
house. This constituted surprise, and had Thompkins objected, the court would not
have abused its discretion in finding surprise and affirmative damage. See Holmes at
23.
{¶18} It appears from the way the testimony developed that I.G. was making
a distinction between the apartment complex and the apartment, and that his trial
testimony, when clarified, did not contradict his statement to the officers.
{¶19} Thompkins argues that the trial court’s admission of the impeachment
evidence was plain error because I.G.’s prior statement was more damaging to his
defense than I.G.’s trial testimony. Upon further questioning, I.G. clarified that he
had not been inside Thompkins’s apartment before the robbery. Instead, I.G.
recounted that Thompkins had joined him and T.M. in a hallway within Thompkins’s
apartment complex. The use of the prior seemingly inconsistent statement led to
I.G.’s clarification that the three had not been inside Thompkins’s apartment before
the robbery. Thompkins has failed to demonstrate any error by the trial court in the
admission of the impeachment evidence. We overrule the first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Ineffective Assistance of Counsel
{¶20} In his second assignment of error, Thompkins argues that he was
denied the effective assistance of counsel. To prevail on an ineffective-assistance
claim, an appellant must demonstrate that his counsel’s performance was deficient,
and that, in the absence of counsel’s errors there is a reasonable probability that the
result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-
142, 538 N.E.2d 373 (1989). Our review of counsel’s performance must be “highly
deferential.” Strickland at 689.
{¶21} Failing to object to the prosecutor’s use of impeachment evidence.
Thompkins asserts that counsel’s performance was deficient because he failed to
object to the prosecutor’s impeachment of I.G. However, as we have discussed, the
use of the statement for impeachment was not error. Moreover, as an experienced
trial attorney, defense counsel certainly was aware of the presumption that, in a
bench trial, the court considered only relevant, material, and competent evidence.
See State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987); Neal, 1st Dist.
Hamilton No. C-140667, 2015-Ohio-4705, at ¶ 49.
{¶22} Eliciting damaging testimony on cross-examination. Thompkins
contends that defense counsel’s cross-examination of I.G. elicited testimony that
Thompkins had been involved in planning the robbery. He claims that, upon direct
examination, I.G. had not implicated Thompkins in the planning. However, the
record does not support Thompkins’s assertion. On direct examination, I.G. testified
that he had met up with T.M. and Thompkins and that, on the evening of the
robbery, the three of them planned on “[g]etting some money” by “[r]obbing
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OHIO FIRST DISTRICT COURT OF APPEALS
something.” They decided that he and T.M. would go into the hotel “to get the
money” and that Thompkins would act as “just a lookout.” Thus, I.G. implicated
Thompkins in the robbery before cross-examination.
{¶23} Thompkins also argues that defense counsel should not have asked
I.G. if Thompkins had gotten anything from the robbery, because it allowed I.G. to
respond that they were going to give him something:
[Defense counsel]: Okay. Did [Thompkins] get any proceeds?
[I.G.]: What’s that mean?
[Defense counsel]: Did he get any of the stuff that was taken?
[I.G.]: Yeah, we was going to.
[Defense counsel]: Did he know that?
[I.G.]: Yeah.
{¶24} While this may have provided additional evidence of Thompkins’s
involvement, it was duplicative of I.G.’s testimony on direct examination (that the
three of them planned on getting some money). Therefore, we cannot say that
counsel’s cross-examination fell below an objective standard of reasonable
representation. See Strickland at 687-688; Bradley at 380. We overrule the second
assignment of error.
Weight and Sufficiency of the Evidence
{¶25} In his third assignment of error, Thompkins challenges the weight and
sufficiency of the evidence upon which his convictions were based. He contends that
the state failed to prove that he was complicit in the aggravated-robbery offenses. He
does not dispute that the state otherwise proved the elements of the offenses.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found all the essential elements of the crime proved
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. When considering a challenge to the weight of
the evidence, the court must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997).
{¶27} The aggravated-robbery statute, R.C. 2911.01(A)(1), provides:
No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
immediately after the attempt or offense shall * * * [h]ave a
deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it,
indicate that the offender possesses it, or use it.
{¶28} To support a conviction for complicity by aiding and abetting, the
evidence must show that the defendant “supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio
St.3d 240, 754 N.E.2d 796 (2001), syllabus; R.C. 2923.03(A)(2). Criminal intent
“ ‘may be inferred from presence, companionship, and conduct before and after the
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OHIO FIRST DISTRICT COURT OF APPEALS
offense is committed.’ ” Johnson, quoting State v. Pruett, 28 Ohio App.2d 29, 34,
273 N.E.2d 884 (4th Dist.1971).
{¶29} In this case, the trial court, as the trier of fact, was entitled to
disbelieve Thompkins’s version of the events and to believe I.G.’s testimony that
Thompkins had acted as the lookout in the robbery. Therefore, the convictions were
not against the manifest weight of the evidence and were supported by sufficient
evidence. We overrule the third assignment of error.
Sentencing
{¶30} In his fourth assignment of error, Thompkins argues that his sentences
are contrary to law because the trial court failed to consider the purposes and
principles of sentencing, and failed to merge his convictions for aggravated robbery.
Under R.C. 2953.08(G)(2), this court may vacate or modify a sentence only if we
clearly and convincingly find that the record does not support the mandatory
sentencing findings or that the sentence is otherwise contrary to law. See State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231; State v. White, 2013-
Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).
{¶31} Consideration of the relevant sentencing factors. The overriding
purposes of felony sentencing are to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that
the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources. R.C. 2929.11(A). In sentencing a
felony offender, a court must consider these purposes, as well the seriousness and
recidivism factors set forth in R.C. 2929.12. R.C. 2929.12(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} In this case, the trial court explicitly considered the purposes of felony
sentencing, as well as the seriousness of the offenses and the likelihood that
Thompkins would reoffend. The court noted that Thompkins was 21 years old,
unemployed, and had a juvenile adjudication for breaking and entering. Referring to
the presentence-investigation report, the court indicated that Thompkins had a high
risk to reoffend.
{¶33} The sentences for the aggravated-robbery offenses fell within the
statutory range for first-degree felonies, as set forth in R.C. 2929.14(A)(1).
Moreover, R.C. 2929.14(C)(1) required the mandatory three-year prison term for the
firearm specification to be served consecutively to and prior to the terms on the
underlying felonies.
{¶34} Merger of offenses. Thompkins also argues that the trial court erred
by failing to merge his two aggravated-robbery convictions under R.C. 2941.25(A),
because the offenses were allied offenses of similar import. The record reflects that
he asserted in the trial court that the robbery offenses merged with the aggravated-
robbery offenses, and that the four firearm specifications should merge. However,
he did not assert that the aggravated-robbery offenses should merge.
{¶35} By failing to seek the merger of his aggravated-robbery convictions in
the trial court, Thompkins forfeited his allied-offenses claim for appellate review.
See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21.
Therefore, he must demonstrate plain error. Id. at ¶ 22.
{¶36} Offenses involving separate victims are offenses of dissimilar import
within the meaning of R.C. 2941.25(B). State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, ¶ 26; Rogers at ¶ 27. In this case, the state proved that
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Thompkins and his codefendants had robbed the hotel clerk of her personal phone
and robbed the hotel of cash from its register. See State v. Lytle, 10th Dist. Franklin
Nos. 15AP-748 and 15AP-754, 2016-Ohio-3532, ¶ 54. Thompkins’s conduct
constituted offenses involving separate victims. Therefore, we hold that the trial
court did not commit plain error in imposing separate sentences for the two counts
of aggravated robbery. See Ruff at ¶ 26; Rogers at ¶ 27.
{¶37} Thompkins’s sentences are not contrary to law, and the trial court did
not err by failing to merge the aggravated-robbery convictions. Therefore, we
overrule the fourth assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
CUNNINGHAM, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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