Opinion
No. 107238
04-11-2019
STATE OF OHIO, Plaintiff-Appellee, v. DAVID N. RANDALL, Defendant-Appellant.
Appearances: Ruth R. Fischbein-Cohen, for appellant. Michael C. O'Malley, Prosecuting Attorney, James M. Rice, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-622848-A
Appearances:
Ruth R. Fischbein-Cohen, for appellant. Michael C. O'Malley, Prosecuting Attorney, James M. Rice, Assistant Prosecuting Attorney, for appellee. PATRICIA ANN BLACKMON, P.J.:
{¶ 1} David N. Randall ("Randall") appeals his grand theft conviction and assigns the following errors for our review:
I. The finding of guilt for grand theft was against the manifest weight of the evidence.
II. Trial counsel was ineffective in not motioning the trial court to waive costs.
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.
{¶ 3} On August 30, 2017, at approximately 5:00 p.m., Randall was involved in an argument with Lamount Barrett ("Barrett") at the Safeway Tire & Car Care ("Safeway") on East 47th Street and St. Clair Avenue in Cleveland. The argument concerned Barrett's alleged failure to pay for Randall repairing Barrett's truck and Randall's refusal to return the truck to Barrett. This argument was caught on video, and it shows Randall holding a gun and refusing to give the keys to the truck to Barrett. In response, Barrett pulled out a knife and slashed at Randall's arm. Barrett ran away from the scene and heard a gunshot. Barrett later called the police and told them what happened.
{¶ 4} On November 6, 2017, Randall was charged with felonious assault with firearm specifications and grand theft. The case proceeded to a bench trial and on March 30, 2018, the court acquitted Randall of felonious assault and found him guilty of grand theft in violation of R.C. 2913.02(A)(1), a fourth-degree felony. On April 30, 2018, the court sentenced Randall to 18 months of community control sanctions. This appeal follows.
{¶ 5} The following testimony was presented at Randall's trial:
{¶ 6} Barrett testified that he knew Randall as a friend of his family, and in the summer of 2017, Randall worked on Barrett's 2006 Chevy Impala a few times. According to Barrett, he paid Randall each time Randall repaired the Impala. Barrett purchased a 2002 Dodge Ram truck "in the middle of July," and Randall looked at the vehicle with him "to make sure it was — would be suitable for me." As compensation, Randall received an old "big screen TV that this guy was throwing away." In late July and August 2017, Randall worked on Barrett's truck, and Barrett paid Randall for the services. During this time, the truck remained with Randall and it was not drivable. Barrett testified that Randall "took his time" with the repairs. "He kept telling me he needed more time, he needed time."
{¶ 7} Sometime in August 2017, Barrett asked Randall to finish the repairs and give the truck back to him. According to Barrett, he had supplied the parts for the repairs, and he had paid Randall for his labor "[b]efore we started." Barrett allegedly gave Randall the final $150 payment on August 16 or 17, 2017. When Barrett asked for the vehicle back, Randall asked for more time. Barrett testified that Randall "never asked me for no more money at all."
{¶ 8} Barrett testified that on August 30, 2017, he met Randall at Safeway to pick up the truck. According to Barrett, he paid Safeway for a wheel alignment on the truck, and Safeway gave the keys to the truck to Randall. Barrett further testified that Randall wanted another $625 for repairs to the oil pan. Barrett wanted the keys to his truck. While they were still in the Safeway garage, Randall "pulled out his pistol" and refused to give Barrett the keys until Barrett paid him the money. According to Barrett, Randall's friend, who was at Safeway with Randall, "watched this whole thing."
{¶ 9} Barrett testified that Randall "walked around me, and walked to my truck, and tried to open the door. After pointing the gun at me two or three times, I pushed his hand down. And once he opened my truck door, I closed it back. I told him to give me my keys." Asked if he was concerned that Randall might shoot him, Barrett replied, "I was a little. But just because of it's broad daylight, cameras everywhere, I'm thinking what fool would do this."
{¶ 10} Randall walked back into, then out of, the Safeway, still holding the gun. Randall then got in his van. Barrett testified that he called the police and walked up to the window of the van. Randall "has * * * the gun pointed right to my face, about two inches from my face."
{¶ 11} Barrett pulled out a pocketknife to try to disarm Randall and get his keys back. According to Barrett, "it didn't work." Barrett stabbed Randall in the left arm but also ended up cutting himself, severing a tendon on his pinky finger, because, at this point, he was afraid Randall was going to shoot him. Barrett walked away from Randall's van. "I started to walk off until I heard * * * Randall's door open. Then I started to run. And I never kind of looked back, but I heard the gunshot. And I hit the corner, and I hopped into my vehicle." Barrett testified that when he got to his car, he was still on the phone with the police.
{¶ 12} Video footage from August 30, 2017, taken outside of the Safeway was stipulated to and introduced into evidence. This video footage corroborated Barrett's testimony. The video shows Barrett and Randall standing in front of the truck, with Randall pointing a pistol at Barrett. Barrett then pushed the gun away from being pointed at his face while the two men were still arguing. The video shows Randall getting into his van still holding the gun. Seconds later, Barrett approaches the van with a knife and begins "slashing" at Randall's arm.
{¶ 13} Barrett left Safeway and parked at a nearby street corner, waiting for the police to arrive. Ultimately, Barrett got his truck back "two or three months later" from the Cleveland Police. Barrett testified that he paid $950 for repairs to the truck to make it drivable.
{¶ 14} The 911 call that Barrett made at 5:05 p.m. on August 30, 2017, was played for the court. Barrett told the dispatcher that a man named David Randall fixed his truck but would not give him the keys and pulled a gun on him. Barrett also told the dispatcher that Randall just shot the gun at him.
{¶ 15} The state played another 911 call for the court, this one from Randall, who called the police after Barrett cut Randall's arm with a knife. Cleveland Police Detective Aaron Reese ("Det. Reese") testified that he followed up on two reports — one listing Barrett as the victim and one listing Randall as the victim. Det. Reese spoke with both alleged victims, as well as witnesses to the incident, and he viewed the video footage from Safeway. Det. Reese presented the information to the prosecutor's office and one of the assistant prosecutors determined to charge Randall and not charge Barrett. Det. Reese testified that Barrett's "story was consistent with the video and * * * Randall's story was inconsistent with the video."
{¶ 16} For example, Randall denied possessing or shooting a firearm; however, Det. Reese testified that he could see Randall possessing a gun, and he believed also shooting the gun, on the video. According to Det. Reese, Randall "appeared to take a position of — a stance, if you will, a shooting stance, and then it appears that his body reacts to the firearm being discharged." Det. Reese also testified that the video was consistent with witnesses' statements about the incident. According to Det. Reese, Randall said about the gun, "[I]f I had one, he wouldn't be here. He'd be toe-tagged, you know, he's saying that [Barrett] would be dead if he had a gun."
{¶ 17} Calvin Tucker ("Tucker") testified that he has known Randall "for a long time, working on cars." Tucker testified that he helped Randall work on Barrett's car and then a truck that Barrett purchased. Tucker was with Randall and Barrett when Barrett bought the silver Dodge pickup truck. According to Tucker, Randall had the truck for "about a month because we had to wait on some parts to come * * *" before they completed repairing it.
{¶ 18} On August 30, 2017, Tucker rode with Randall to Safeway where Barrett's truck was. While Barrett and Randall talked, Tucker noticed an oil leak under the truck and he got on the ground underneath the vehicle "to look and see where it was coming from." He heard Barrett and Randall come out of Safeway with "a little animosity" in their voices. According to Tucker, Randall "wanted his money" and Barrett "wanted his car." Tucker said he got out from underneath the truck and tried to "calm the situation" by talking to the men.
{¶ 19} Asked if Randall had a gun, Tucker answered, "I can't remember." However, the state played a recorded phone conversation between Tucker and Det. Reese in which Tucker says that he saw a gun in Randall's hand that day. After his memory was refreshed, Tucker testified that he saw Randall with a "black revolver" in his hand when Randall and Barrett were arguing. Tucker further testified that Randall fired one shot in the air as Barrett was running away. He also saw Barrett cut Randall "a couple of times" with the knife before Barrett "took off running."
{¶ 20} Tucker took Randall to MetroHealth because "his arm * * * was bleeding real bad * * *." From the hospital Tucker took Randall back to Safeway to get the truck. According to Tucker, Randall still had the keys to the truck, and he drove the truck out of the Safeway parking lot.
{¶ 21} Randall took the stand and testified that he had Barrett's truck for the month of August 2017 for repairs, because "everything underneath was corroded." Their verbal agreement was that Barrett would buy the parts so that Randall could replace them. "He agreed to purchase everything himself. And as the stuff came in, we installed it." When the repairs were complete, Randall took the truck to Safeway for a wheel alignment, and he told Barrett to meet him there. Barrett was to pay $60 for the alignment, but Randall had to be there to get the truck because it was registered at Safeway under Randall's name.
{¶ 22} Randall testified as follows about what happened after Barrett paid Safeway:
As we were coming out of the office, walking towards the bay, up toward the vehicles, he asked me for the keys.
I said, well, aren't you going to take me back home and let's test drive it. I didn't get a chance to drive it since the alignment, you know, let's test drive it.
He said no. Give me my fucking keys.
And he pushed me. My glasses fly off my face.
And I said, if my glasses broke, I'm gonna beat your ass.
So I turned around, and he fade to the right. And that's when he pulled out, it's like a brass knuckle flip-blade knife.
Then I said, oh, you got a knife. So I pulled out the pistol.
And I said, yeah, you want some of this?
And I clicked — I had to lock the truck with the chirper. I locked the truck back.
I said, I'm going to call the police, and that's when I went to my vehicle.
{¶ 23} Randall testified that he got in his van and "the next I know, [Barrett's] at the door, slashing." According to Randall, he got cut with the knife Barrett was using to try to stab him. Ultimately, Barrett took off running and Randall grabbed his gun and "just shot up in the air."
{¶ 24} On cross-examination, Randall testified that the plan that day was for Barrett to get his truck back after Barrett paid Randall for the repairs. However, after their argument, Barrett left without his truck. Later that day, Randall "drove it away from the premises of Safeway up to the corner, 55th, parked it, and had my buddy come and tow truck — flatbed it to the impound lot where I impounded the vehicle."
Manifest Weight of the Evidence
{¶ 25} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, & 25, the Ohio Supreme Court addressed the standard of review for a criminal manifest weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In Thompkins, the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive — the state's or the defendant's? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.
{¶ 26} An appellate court may not merely substitute its view for that of the jury, but must find that "in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for "the exceptional case in which the evidence weighs heavily against the conviction." Id.
Grand Theft
{¶ 27} Pursuant to R.C. 2913.02(A)(1), "[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 * * *."
{¶ 28} In the case at hand, the court found Randall guilty of grand theft based on Randall exerting control over Barrett's truck without Barrett's consent. Specifically, the court found that Randall and Barrett testified that, on August 30, 2017, they met at Safeway "with the understanding that that was going to be the final repair of [Barrett's] truck." According to Randall, "Barrett was going to pay for the alignment and then settle up with * * * Randall for the rest of the fees on that vehicle." Barrett, however, "had a contrary understanding. He thought he was going to show up there, pay for the alignment and take his car. He was not aware that he was going to be required to pay additional amounts for the services on the Ram pickup truck."
{¶ 29} The court further found that the evidence established that Randall "had the keys to * * * Barrett's vehicle; that he refused to give him the keys when * * * Barrett insisted that he give him the keys to his vehicle. And the vehicle was, in fact, not returned to * * * Barrett until sometime later. I'm talking weeks later, not days." The court noted that any dispute over payment was contractual in nature, to be "resolved in a court of law." The court explained that "at the moment that * * * Barrett demanded his car back at * * * Safeway * * *, he was entitled to a return of that property without any other evidence that there was a superior claim that * * * Randall had to that property. It should have been returned at that point." The court concluded that the state established, "by proof beyond a reasonable doubt," the elements of grand theft: "Randall continued to exert control over the property at that point, then, that is without the consent of the owner or person authorized to give consent and that property is a motor vehicle."
{¶ 30} Upon review, we cannot say that the court lost its way and created a manifest miscarriage of justice in convicting Randall of grand theft. The evidence presented at Randall's bench trial weighs in favor of the state, as Barrett's testimony is consistent with Tucker's testimony, which is corroborated by the video and 911 call. Indeed, Randall's own testimony that, despite Barrett asking for the keys to his truck, Randall drove Barrett's truck away from Safeway and had it towed is consistent with the elements of grand theft.
{¶ 31} Accordingly, Randall's conviction is not against the manifest weight of the evidence and his first assigned error is overruled.
Ineffective Assistance of Counsel
{¶ 32} To succeed on a claim of ineffective assistance of counsel, a defendant must establish that his or her attorney's performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance." Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743 (1989).
Waiver of Court Costs
{¶ 33} In the case at hand, the court imposed "court costs associated with this case" at Randall's sentencing hearing. Randall's counsel did not object nor did he request a waiver of the costs. On appeal, Randall argues that it is within the court's discretion whether to waive costs, and "to preserve the issue [for appeal], trial counsel should have moved the trial court to waive costs during sentencing." This argument is without merit.
{¶ 34} Pursuant to R.C. 2947.23(C), a trial "court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 265, the Ohio Supreme Court concluded that the defendant "does not need this court to remand this case in order for him to file a motion to waive costs." This court has held that a defendant "cannot establish he was prejudiced by counsel's failure to seek a waiver of court costs [because] a defendant is no longer required to seek a waiver of court costs at the sentencing hearing in order to preserve the issue for appeal." State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 15.
{¶ 35} Upon review, we find that Randall failed to show that his counsel was ineffective and failed to show that he was prejudiced by his counsel's performance. Accordingly, Randall's second and final assigned error is overruled.
{¶ 36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending 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. /s/_________
PATRICIA ANN BLACKMON, PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR