State v. Lash

[Cite as State v. Lash, 2017-Ohio-4299.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104725

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JAKWAN LASH

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598485-C

BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: June 15, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
1360 East 9th Street, Suite 600
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Carl Mazzone
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant, Jakwan Lash, appeals his conviction and sentence for

aggravated robbery and kidnapping. For the reasons that follow, we affirm the

conviction and sentence but the matter is remanded to the trial court to enter a nunc pro

tunc entry setting forth the applicable consecutive sentence findings made at the

sentencing hearing.

I. Procedural History and Facts

{¶2} In 2015, Lash was charged with aggravated robbery, robbery, two counts of

kidnapping, petty theft, and tampering with evidence. The aggravated robbery, robbery,

and kidnapping counts contained one- and three-year firearm specifications and forfeiture

specifications. The matter proceeded to a jury trial at which the following pertinent

evidence was presented.

{¶3} Lash worked as a sales clerk at AutoZone on Mayfield Road in Cleveland

Heights in 2013 and 2014. As a clerk, his duties included sweeping and mopping the

store floor, tidying up displays, and taking trash out to the dumpsters, which was the

routine he conducted each night at closing time. He was familiar with the procedures for

operating the cash register, including where large bills were kept, and what remained in

the registers and store safe at closing time. He also knew the manager could access

about $1,400 in cash at closing time.

{¶4} Kenneth McElrath had been the sales manager at AutoZone since the store

had opened. He had worked with Lash and considered him a friend. Lash quit
Autozone in 2014, but continued to shop there.

{¶5} In early August 2015, Lash, and three friends, Jeremy Merritt, Alexander

Hawkins, and Leontae Jones, began plotting to rob AutoZone. In the weeks leading up

to the robbery, the four men texted each other to discuss plans to case the store, transfer

the title for the getaway car, purchase handcuffs, and discuss what to wear during the

robbery.

{¶6} On Sunday, August 16, 2015, shortly before the 9:00 p.m. closing time,

McElrath and store employee Randy Hay began store closing procedures. Hay, who had

worked at the store for six to eight months, swept and mopped the floor, and then

proceeded to take the trash out to the dumpster. Two men wearing masks approached

Hay as he neared the trash corral. The men took him inside the corral at gunpoint and

one man held a gun to his neck while the other man bound him with duct tape, and

handcuffed him. The men took Hay’s cell phone and left him. Hay, who testified he

was scared for his life, did not move until police arrived.

{¶7} Meanwhile, McElrath was alone inside the store when three customers pulled

up in a SUV and entered the store. The customers told McElrath that they had seen

something happening in the back near the trash corral. McElrath immediately locked the

door with customers inside and called 911.

{¶8} Officer Robert Butler of the Cleveland Heights Police Department was the

first officer to arrive on scene. He saw Hay on his knees, handcuffed, and covered with

tape. Using his key, Officer Butler removed the handcuffs and observed that the serial
number on the handcuffs had been scratched beyond recognition. Officer Butler also

saw items discarded near the trash corral and used his canine partner Rocky to find a

scent. Rocky tracked a scent through the neighborhood south of the store. The trail

went cold in the middle of a nearby street which, the officer testified, suggested that the

assailants had gotten into a car.

{¶9} During the same time as the incident at AutoZone was occurring, a call came

into the Cleveland Heights Police Department for a street fight with guns on Hollister

Avenue. Sergeant David Speece and Officer Lewis Alvis responded to the street but

found the street quiet. This led the officers to believe the call had been a hoax. The

officers then responded to AutoZone.

{¶10} Detective Michael Reese and Officer Matthew Lasker processed the crime

scene. Officer Lasker located discarded latex gloves and additional strips of duct tape

on the tree lawn near the western entrance to the AutoZone parking lot. Sergeant Speece

interviewed the three customers who saw commotion out by the trash corral and obtained

a suspect description, which he subsequently called out over the radio. Detective Reese

learned that the two men had stolen Hay’s cell phone; the detective requested

authorization from Hay’s cell phone provider to track the phone. The detective traced

the phone to Monticello Boulevard and located a red Chevy Blazer, which was registered

to a Jeremy Merritt at 3808 Delmore. The police effectuated a traffic stop and identified

the driver of the car as Alexander Hawkins.

{¶11} Officer Alvis canvassed the area south of AutoZone, the same general area
where Rocky had traced a scent. A witness told Officer Alvis that he had seen a man

pacing around a “beat-up” red Blazer. Alvis took the witness to Monticello Blvd. and

the witness identified Merritt’s Blazer as the same vehicle he had earlier seen.

{¶12} Detective Reese investigated the 911 call that sent officers to Hollister

Avenue at the same time as the AutoZone robbery. He traced the 911 call to Brenda

Lash, who lived at 3808 Delmore. The police went to conduct surveillance on the

residence and observed two cars, a Monte Carlo and a Lexus, pull out of the driveway.

The cars split off in separate directions and officers followed the Monte Carlo. Sergeant

Speece set up a roadblock and the Monte Carlo was stopped. The officers identified

Lash as the driver and Jeremy Merritt as the passenger. Lash told the officers that he

was a valid CCW permit holder and had a weapon in the center console. During a

subsequent search of the Monte Carlo, police recovered a bag of black latex gloves,

which they believed matched those recovered at the crime scene and later at 3808

Delmore, as well as a black-hooded sweatshirt and a bucket style hat that matched the

description of a hat worn by one of the assailants.

{¶13} Officer Lasker pursued the Lexus. The officer stopped the Lexus and

identified the driver as Leontae Jones, who was also a valid CCW permit holder. The

officer recovered a gun from the car.

{¶14} Officers went to speak with Brenda Lash, Lash’s mother, who lived at 3808

Delmore with her boyfriend, children (including Lash), and Jeremy Merritt. She denied

placing the call to 911 for the fight on Hollister, and permitted police to photograph the
call log on her phone. While photographing the log, police were able to confirm phone

numbers for both Lash and Jeremy Merritt. Brenda then permitted the police to search

her son’s bedroom and the basement, where Jeremy Merritt stayed. Police found a pair

of handcuffs with the serial number scratched off on Lash’s bed and a handgun in Lash’s

dresser. Brenda testified that the handcuffs belonged to her 13-year-old son. Police

also found a shopping bag, boxes for two pairs of handcuffs, and handcuff keys in the

basement.

{¶15} Detective Reese found two receipts on Lash’s person from AutoZone

stores while booking him into the Cleveland Heights jail. One receipt was from

Superior Avenue near East 79 Street in Cleveland and the other was from Euclid Avenue

in East Cleveland. Both receipts were time-stamped the afternoon of August 16, 2015,

the same day as the robbery at the AutoZone. Both receipts were for the purchase of

rolls of duct tape.

{¶16} Lash testified at trial. He testified that he had never seen the handcuffs the

police found on his bed. He testified that the bucket hat located in his car at the time of

his arrest belonged to Leontae Jones, and that just before they left 3808 Delmore and

were pulled over by the police, Jones gave him the hat as partial payment for $30 that

Jones owed him.

{¶17} Lash explained the two AutoZone receipts as follows. He testified that he

and his girlfriend went to the AutoZone on Superior Avenue to purchase RainEx, but the

store was too crowded so they did not go inside. They then drove to the store on Euclid
Avenue where they bought the RainEx with cash, but Lash did not have the receipt

because he “probably” left it in his girlfriend’s car. He denied ever purchasing duct tape

at those two locations on August 16, 2015, and explained that Jones gave him the receipts

for the duct tape so Lash could return the duct tape and keep the cash for fulfillment of

the $30 debt.

{¶18} The jury convicted Lash of all counts, except theft. After the court

determined that the robbery and kidnapping counts merged, the court sentenced Lash to

six years for aggravated robbery plus three years for the firearm specification concurrent

to six years for kidnapping plus three years for the firearm specification, and 24 months

for tampering with evidence. The court ran each six year sentence on the underlying

counts concurrent to each other, but consecutive to the 24 month sentence for tampering

with evidence for a total aggregate sentence of 14 years.1

{¶19} Lash now appeals, raising four assignments of error for our review:

I. The court erred in entering a judgment of conviction of kidnapping in
Count 4 of the indictment, as the evidence was insufficient to sustain the
verdict.

II. The court erred in entering a judgment of conviction of tampering with
evidence, as the evidence was insufficient to sustain the verdict.

III. The court erred in sentencing the Defendant on both the merged
robbery convictions and the merged kidnapping convictions, as those
offenses were allied offenses of similar import.

IV. The record clearly and convincingly fails to support the imposition of

1
Merritt went to trial and was acquitted of all charges. Jones and Hawkins each pleaded
guilty to various charges and were sentenced to prison time.
 consecutive sentences.

II. Law and Analysis

{¶20} In the first assignment of error, Lash argues that the evidence was

insufficient to support his convictions for kidnapping.

{¶21} When reviewing a challenge of the sufficiency of the evidence, we examine

the evidence admitted at trial and determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.

Jenks, 61 Ohio St.3d 259, 263, 574 N.E.2d 492 (1991). “The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id. at paragraph two of the syllabus.

{¶22} A sufficiency challenge requires us to review the record to determine

whether the state presented evidence on each of the elements of the offense. This test

involves a question of law and does not allow us to weigh the evidence. State v. Martin,

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

{¶23} Lash was convicted of kidnapping, pursuant to R.C. 2905.01(A)(1) and

(A)(2), which state that:

(A) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes:

(1) To hold for ransom, or as a shield or hostage;

(2) To facilitate the commission of any felony or flight thereafter[.]
 {¶24} Lash argues that the evidence was insufficient to support his conviction

under either R.C. 2905.01(A)(1) or (A)(2), but does not discuss why the evidence did not

support his conviction under R.C. 2905.01(A)(2) or support that argument with any

citations to the record or to authority as required by App.R. 12(A)(2) and 16(A).

{¶25} Lash argues that the evidence was insufficient to support his conviction for

kidnapping under R.C. 2905.01(A)(1) because the state did not provide any evidence to

support the claim that Hay was kidnapped for the purpose of using him as a human shield

or hostage.

{¶26} Hay testified that he was taking out the store’s trash when he was

approached by two assailants with guns. The two men took him around the back side of

the trash corral, told him to get on his knees, grabbed his arms, put his arms behind his

back, put him in handcuffs, and then took a roll of duct tape and covered his eyes, mouth,

and ears, and wrapped it around his head. Hay further testified that one of the men held

the gun to his neck or head the entire time. The two men repeatedly told Hay not to move

or they would kill him.

{¶27} In State v. Sanders, 8th Dist. Cuyahoga No.75398, 2000 LEXIS 1651 (Apr.

13, 2000), three assailants planned to kidnap and rob a store owner and his girlfriend.

The men waited for the victims to exit the store when they approached with guns. Both

victims were ordered to their knees. The store owner was placed in handcuffs, while one

of the assailants attempted to duct tape the girlfriend’s hands behind her back. The

robbery was thwarted when the store owner was able to gain access to the weapon the
defendant had placed on the ground. The jury convicted the defendant of kidnapping

under R.C. 2905.01(A)(1) and this court affirmed the conviction. Id. at *19.

{¶28} Based on the testimony in the record and viewing the evidence in the light

most favorable to the state of Ohio, a rational trier of fact could find Lash guilty of each

element of the offense of kidnapping beyond a reasonable doubt.

{¶29} The first assignment of error is overruled.

{¶30} In the second assignment of error, Lash claims that the evidence was

insufficient to support his conviction for tampering with evidence.

{¶31} Lash was convicted of tampering with evidence for scratching the serial

numbers off the handcuffs in violation of R.C. 2921.12(A)(1), which provides:

(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:

(1) Alter, destroy, conceal, or remove any record, document, or thing,
with purpose to impair its value or availability as evidence in such

proceeding or investigation[.]

{¶32} The Ohio Supreme Court has outlined three elements of the offense of

tampering with evidence: (1) the knowledge of an official proceeding or investigation in

progress or likely to be instituted, (2) the alteration, destruction, concealment, or removal

of the potential evidence, and (3) the purpose of impairing the potential evidence’s

availability or value in such proceeding or investigation. State v. Straley, 139 Ohio

St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.

{¶33} In Straley, the defendant’s car was stopped for a traffic violation. Upon
further investigation, the police suspected she was driving under the influence of alcohol.

When the detectives were trying to find her a ride home, she insisted that she needed to

go to the bathroom. She ran to the side of a building in order to do so. One of the

detectives later found a urine-soaked baggie containing crack cocaine in the area. The

Ohio Supreme Court held that her conviction was not supported by sufficient evidence,

because there was nothing in the record to suggest that police were conducting or likely to

conduct an investigation into trafficking or possession of cocaine when Straley discarded

the baggie. Id. at ¶19.

{¶34} Lash argues that there was no likelihood of an investigation at the time the

serial numbers were scratched of the handcuffs because the crime was still in the planning

stages at that time. The state argues that the record demonstrates that the handcuffs were

purchased for the express purpose of robbing AutoZone. To support its position, the

state points to the discovery of two empty handcuff boxes in Lash’s house and the text

messages between Jones and Lash. Jones texted Lash on August 12 telling Lash he was

going to the “cuff store,” and again on August 13 that he “got cuffs.” The state argues

that Lash and his codefendants purchased matching handcuffs as part of their plan to rob

AutoZone; the two sets of handcuffs were part and parcel to the crime. According to the

state, as part of the robbery, police would likely be called, and an investigation would

likely follow, including the processing of the matching handcuffs. Both sets of

handcuffs had serial numbers that were scratched beyond recognition. The state posits

that there was no other purpose for obliterating the serial numbers on the matching
handcuffs except to prevent police from attempting to connect the pairs of handcuffs to

each other, possibly their purchase, and thereby the purchaser of the handcuffs.

{¶35} “Likelihood is measured at the time of the act of alleged tampering.”

Straley at id. In this case, the evidence showed that the handcuffs were purchased on

August 13, 2015, three days prior to the kidnapping and robbery. Thus, Lash and his

codefendants scratched off the serial numbers on the handcuffs within the three days prior

to the robbery. Is that act sufficient to show proof that Lash intended to impair the value

or availability of evidence as it related to a likely official investigation? We believe that

under the unique circumstances of this case, it is. Unlike many tampering with evidence

cases, where there is a single actor who attempts to destroy evidence immediately before

or after apprehension, in this case, the evidence showed that the four codefendants were

in communication in the days leading up to the crime, plotting a complex and violent

crime. Their plan included casing the AutoZone and using firearms, duct tape, and

handcuffs to subdue the people working in the AutoZone store to steal money. Lash, as

a former AutoZone employee, knew the inner workings of that store.

{¶36} Based on these facts, the likelihood is high that a police investigation would

follow a kidnapping and robbery involving firearms, duct tape, and handcuffs. The

likelihood is certainly high enough when viewing the evidence in the light most favorable

to the state. Therefore, we find a rational trier of fact could find Lash guilty of each

element of the offense of tampering with evidence beyond a reasonable doubt.

{¶37} The second assignment of error is overruled.
 {¶38} In the third assignment of error, Lash argues that the trial court erred by

refusing to merge his convictions for kidnapping and aggravated robbery.

{¶39} Ohio’s multiple-count or “allied offenses” statute, R.C. 2941.25, provides

the following:

(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶40} Lash argues that his convictions for kidnapping should have merged into his

conviction for aggravated robbery because his kidnapping of Hay was committed with the

same animus as the aggravated robbery of Hay or AutoZone (the indictment lists both

Hay and AutoZone as victims). R.C. 2941.25(B) provides that when a defendant’s

conduct constitutes two or more offenses of dissimilar import, the defendant may be

convicted of all of the offenses. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, ¶ 16. “Two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate

victims or if the harm that results from each offense is separate and identifiable.” Id. at

¶ 26.
 {¶41} The state argues that the two crimes were committed with separate

animuses: one animus was to kidnap Hay in order to facilitate the second crime of

aggravated robbery of AutoZone.

{¶42} Lash cites State v. Ranzy, 8th Dist. Cuyahoga No. 97275, 2012-Ohio-2763,

to support his position that the offenses of aggravated robbery and kidnapping should be

merged. In Ranzy, the victim left his apartment and walked to his car. He was

approached by his former girlfriend and another man he knew; they demanded his car

keys. The victim offered them $20. The girlfriend told the victim to give them his car

keys or the other man would shoot him. The victim tackled the assailant with the gun,

but was shot in the head. He was able to get away, but not before being shot a second

time, in the shoulder. Id. at ¶ 5. This court held that the evidence established that the

offenses were committed with a “single state of mind” and that the restraint was merely

incidental to the defendant’s intention to rob the victim at gunpoint. Id. at ¶ 71.

{¶43} Ranzy is distinguishable from this case. Here, the two assailants waited for

Hay to exit the AutoZone, approached him, pointed guns at him, handcuffed him, bound

him, threatened to kill him, and then left him. At that point, the offense of kidnapping

was complete. The assailants then moved on to rob the AutoZone store; that robbery

was interrupted. The kidnapping of Hay was planned and executed with a separate

animus from what the assailants planned to do once inside the AutoZone.

{¶44} Moreover, because the aggravated robbery charge lists AutoZone as a victim

in the alternative, and Lash did not object to the indictment, he has waived his right to
challenge the fact that there are two separate and identifiable victims to the crimes.

Therefore, his conduct also constitutes offenses involving separate victims pursuant to

R.C. 2941.25(B).

{¶45} Therefore, the trial court did not err when it did not merge the aggravated

robbery and kidnapping convictions. The third assignment of error is overruled.

{¶46} In the fourth assignment of error, Lash contends that the record does not

support the imposition of consecutive sentences.

{¶47} Consecutive sentences may be imposed only if the trial court makes the

required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St. 3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences

may be imposed if the trial court finds that (1) consecutive sentences are necessary to

protect the public from future crime or to punish the offender, and (2) consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public. In addition, the court must find that any one of

the following applies:

(1) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;

(2) at least two of the multiple offenses were committed as part of one or

more courses of the conduct, and the harm caused by two or more of the

offenses was so great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct adequately
 reflects the seriousness of the offender’s conduct; or

(3) the offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶48} In order to impose consecutive terms of imprisonment, a trial court must

both make the statutory findings mandated for consecutive sentences under R.C.

2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing

entry. Bonnell at the syllabus. And although a trial court “is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, * * * it has no obligation to state reasons to support its

findings.” Id.

{¶49} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Id. at ¶ 29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id.

{¶50} Upon review, the trial court made the required findings in sentencing Lash

to consecutive terms and the record contains evidence to support the findings. In

sentencing Lash, the trial court stated:

I do find that consecutive sentences are necessary to protect the public from
future crimes and to punish you. They are not disproportionate to the
 seriousness of your conduct in this case and the danger that you pose to the
public. The extraordinary steps you took with respect to the tampering with
evidence to get rid of those markings certainly to me displayed a thorough
process that was really great or unusual. So, therefore, no single term for
any of the offenses committed as part of this course of conduct would
reflect their seriousness.

{¶51} The court also considered Lash’s role in planning the robbery, the text

messages Lash and the other men exchanged in the weeks leading up to the robbery, and

that he was arrested and charged with another crime while he was out on bond in this

case. The court commented that when it gave Lash a chance on home detention with a

GPS monitor, Lash cut the monitor off and that, after arrest, he called one of his

codefendants and told him what to say in order to minimize his exposure.

{¶52} Lash argues that the trial court failed to properly incorporate its findings

pursuant to R.C. 2929.14(C)(4) into the journal entry and the record does not support its

findings. We cannot clearly and convincingly find that the record does not support the

trial court’s findings, but agree that the trial court failed to incorporate its findings into

the journal entry per Bonnell. Instead, the trial court put another reason pursuant to R.C.

2929.14(C)(4) in the journal entry, which was clearly a clerical error. Thus, the matter

is remanded to the trial court to enter a nunc pro tunc entry setting forth the applicable

consecutive sentence findings made at the sentencing hearing. Bonnell at ¶ 30.

{¶53} The fourth assignment of error is sustained in part.

{¶54} Conviction and sentence affirmed; case remanded to the trial court to enter a

nunc pro tunc entry setting forth the applicable consecutive sentence findings made at the

sentencing hearing.
 It is ordered that appellee recover of appellant 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, SR., JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR