COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68960 70808 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL MATTHEWS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 27, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case Nos. CR-301087 and CR-302867 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS CONWAY, ESQ. CHARLES H. BRAGG, ESQ. Assistant County Prosecutor The Courtyard Office Park KAREN L. JOHNSON, ESQ. 7055 Engle Road Assistant County Prosecutor Suite 1-103 8th Floor Justice Center Middleburg Hts., Ohio 44130 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Michael Matthews, appeals a decision by the trial court convicting him of one count of aggravated robbery, two counts of felonious assault, one count of having a weapon while under disability, two counts of aggravated drug trafficking, and possession of criminal tools. Matthews assigns the following five errors for our review: I. THE TRIAL COURT ERRED IN NOT SUPPRESSING ALL THE EVIDENCE SEIZED IN THE RAID ON THE LEASED PROPERTY OF LINDA MEYER. II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE LINE UP IDENTIFICATION OF THE APPELLANT. III. THE APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND, BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT HIM OF THE CRIMES FOR WHICH HE WAS CHARGED. IV. THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT BECAUSE IT DID NOT APPLY THE ALLIED OFFENSE STATUTE. V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT IN GRANTING THE STATE'S MOTION TO CONSOLIDATE FOR TRIAL THE APPELLANT'S TWO SEPARATE CASES. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On August 18, 1993, John Steele and Donald Watson drove to the area of E. 117th and St. Clair in search of cocaine. Once there, they encountered Donald Fudge and asked him if he knew where they could buy some cocaine. Fudge offered to take them to someone. Fudge got into the back seat of the car and directed Steele and -3- Watson to Michael Matthews, defendant-appellant. Matthews showed Steele some crack cocaine but Steele, who was looking for powder cocaine, told Matthews he was not interested in crack. Matthews told Steele to show him the money. When Steele pulled a one- hundred dollar bill from his pocket, Matthews turned around, took a gun from a juvenile standing behind him and pointed it at Steele. Matthews demanded the money. When Steele refused, Matthews pointed the gun at the ground and fired it, saying that he was serious and repeating his demand for the money. Steele drove away and Matthews fired several shots at the car, striking Steele in the arm and leg. Steele's car was later pulled over by police for speeding. When he noticed Steele had been shot, Officer John Speahia called for an ambulance. Steele told Speahia that he had gotten lost and asked Fudge to direct him to I-90. Steele said that a man approached the car demanding money and shot him when he drove away. Speahia was skeptical and asked Watson what had really happened. Watson admitted they were there to buy drugs. Fudge told police that "Mike" was the shooter and told him what area he hung around in. He also told police that Mike's girlfriend's name was Nicole. On August 26, 1993, police arrested David Cobb for drug trafficking. At the time, Cobb gave police the name "Anthony Bell." Cobb told Detective Thomas Shoulders he had information about a shooting that had taken place in the area. He told Shoulders that Michael Matthews shot a man while attempting to rob him during a drug transaction. He also showed Shoulders the home -4- at 553 E. 114th street where he said Matthews lived with his girlfriend Nicole. Shoulders obtained a file picture of Matthews. On the following day, Shoulders was working on a drug sweep in the area of E. 117th and St. Clair when he saw Matthews approaching on a bicycle. Matthews was then arrested, handcuffed, and placed in the rear of a police car. Shortly thereafter, Matthews' girlfriend, Nicole Meyer, approached the officers and demanded to know why Matthews was being detained. She was told that he was wanted for questioning. Meyer then left that scene and began walking in the direction of the E. 114th street home. Afraid who would remove evidence from the home, police drove to 553 E. 114th and knocked on the door. Linda Meyer, Nicole's mother, answered the door. Linda Meyer allowed the officers in the house. Linda Meyer was asked if she knew Michael Matthews. She replied that he lived there and shared an upstairs bedroom with Nicole. She also told police that Matthews and Nicole did not pay rent. Police asked for permission to search the house and obtained Linda Meyer's signature on a consent form. As officers started upstairs, Nicole Meyer appeared and yelled to the officers not to search her room. After verifying with Linda Meyer that Nicole did not pay rent in the home, they restrained Nicole Meyer and proceeded to search the room. Police found two bags containing a total of 60 units of rock cocaine, just over $100 in cash, and ammunition. Nicole Meyer was also placed under arrest. On the following day, Steele identified Matthews in a police lineup as the man who shot him. Watson was unable to identify -5- Matthews. When told that he had been identified, Matthews denied committing the robbery. On September 9, 1993, Matthews was indicted on two counts of aggravated robbery, two counts of felonious assault, and one count of having a weapon while under a disability (Case No. 301087). On October 19, 1993, Matthews filed a motion to suppress his statements to police claiming that police failed to read him his Miranda rights before interrogating him. On November 23, 1993, Matthews was indicted for two counts of aggravated cocaine trafficking with prior offense and violence specifications and one count of possession of criminal tools with a violence specification (Case No. 302867). Nicole Meyer was also indicted for two counts of aggravated cocaine trafficking and one count of possession of criminal tools. Nicole Meyer pleaded no contest to the charges and was found guilty. Michael Matthews filed a motion to suppress Steele's pre-trial identification of Matthews. The court denied the motions. At trial, the state evidence consisted of testimony from the officers involved in the case. Steele and Fudge both identified Matthews as the shooter, as did David Cobb, who witnessed the shooting from across the street. Bullet fragments found in Steele's car were described as non-jacketed lead bullets probably fired from a revolver. Among the ammunition found in the Meyer home were non-jacketed lead rounds for a .357 revolver. Police firearms examiner, Daniel Rowley, testified the bullets found in Steele's car were similar to the .357 bullets seized from the Meyer home. -6- In his first assignment of error, Matthews argues the trial court should have suppressed the evidence seized from Linda Meyer's home. We addressed this issue in State v. Meyer (May 25, 1995), Cuyahoga App. No. 67529 when we considered the appeal of Matthews' 1 girlfriend, Nicole Meyer. In Meyer, we stated a parent who owns or controls the family residence may consent to a search of those premises. Where such consent is given, the premises may be searched without probable cause or a search warrant. Id. Matthews cites State v. Williams (1995), 101 Ohio App.3d 340, 344, for the proposition that one cotenant's consent is not effective to validate a search over the express objection of another present cotenant when the objecting cotenant has a greater privacy interest in the area to be searched. However, Williams is distinguishable from this case. In Williams, the defendants shared a bedroom in their aunt's basement and paid rent in the amount of $150.00 per month. In this case, Nicole Meyer objected to the search by the officers. However, the evidence revealed that she did not pay rent and there was no evidence presented that would indicate that she had a greater privacy interest in the bedroom than that of Linda Meyer. There was sufficient evidence that Linda Meyer controlled those premises. She was the leaseholder, she paid the rent, and she paid the bills. Although [Nicole Meyer] used the bedroom upstairs with her boyfriend, there was no evidence that she had exclusive interest in or use of the bedroom. The boyfriend did not live at the address, but only stayed there 1 Matthews later married Nicole Meyer. -7- periodically. There was no lock on the door and there was no evidence presented that the mother was restricted from entering the room. The bedroom door was open when the detectives entered. There was sufficient evidence to find Linda Meyer, the head of the household, had access to that bedroom and ability to consent to a search thereof. Meyer at 13-14. Pursuant to our ruling on this issue in Meyer, we overrule Matthews' first assignment of error. In his second assignment of error, Matthews argues the trial court should have suppressed the line-up identification by the victim, John Steele. In State v. Hill (1987), 37 Ohio App.3d 10, the court listed the following factors that affect the reliability of an identification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Matthews argues Steele had only a short time to view his assailant, it was nighttime, and a gun was held to his head. He also argues Steele gave police only a sketchy description of his assailant and that the description was not given until over a week later. He argues the trial court should have suppressed the identification. Our review of the record leads us to a different conclusion. Steele testified that, because of the streetlights, he had no problems seeing Matthews' face. He described the lighting as -8- "good." Matthews' gun was less than one foot away from Steele's head as Matthews demanded money. According to Steele, the encounter with Matthews lasted three minutes. Steele explained that he didn't give the police a description of Matthews right away because he was embarrassed at being in the area to buy drugs. Though Steele admitted telling police that he didn't think he would be able to identify his assailant, Detective O' Malley stated such thoughts are common among crime victims but often they are able to identify their assailant when they see him. The evidence shows that Steele picked Matthews out of the lineup immediately and without hesitation. Despite Steele's statement that the people in the lineup looked like they were of different ages, sizes, and heights, Officer Diane Parkinson testified the men were similar in age, size, and height. Our review of the photographs of the participants and the line-up information sheet revealed reasonable similarities between the men in the lineup. Under the circumstances, we find that Steele's line-up identification of Matthews bore sufficient indicia of reliability to justify its admission. Matthews' second assignment of error is without merit. In Matthews' third assignment of error, he argues his conviction in Case No. 302867 was against the manifest weight of the evidence and that there was insufficient evidence to convict him. "A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, finds that the jury -9- clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. When reviewing the sufficiency of the evidence to support a criminal conviction, a reviewing court must examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273. In Case No. 302867, Matthews was charged with Aggravated Trafficking and Possession of Criminal Tools. To convict Matthews of aggravated trafficking, the state had to prove that Matthews prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed a controlled substance when he knew or had reasonable cause to believe the controlled substance was intended for sale or resale and that he possessed a controlled substance in an amount equal to or exceeding the bulk amount, but less than three times the bulk amount. To prove possession of criminal tools, the state had to prove Matthews possessed or had under his control any substance, device, instrument, or article, with purpose to use it criminally. Detective Shoulders testified that Matthews lived with Nicole Meyer at the 553 E. 114th home leased by Nicole's mother, Linda Meyer. Detective O'Malley stated he was aware Matthews lived at that address since October 1992. The state also presented evidence that Matthews was a drug dealer and that he shared the master -10- bedroom of the Meyer home with Nicole Meyer. Along with more than $100 in cash and numerous rounds of ammunition, the police recovered 60 rocks of crack cocaine from the master bedroom. R.C. 2925.01 defines the bulk amount of cocaine as 25 unit doses. We find the evidence, if believed, was sufficient to convict Matthews for aggravated trafficking and possession of criminal tools and that Matthews' conviction on those charges was not against the manifest weight of the evidence. In his fourth assignment of error, Matthews argues the charges of felonious assault and aggravated robbery were allied offenses. R.C. 2941.25(A) provides: 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. Two or more offenses are allied offenses under R.C. 2941.25(A) when the offenses and their elements correspond to such a degree that commission of one offense results in the commission of the other; when the state relies on the same conduct to support both offenses; and when the commission of both offenses is motivated by the same animus or purpose. State v. Souchey (June 9, 1994), Cuyahoga App. No. 62797, unreported. Two crimes do not constitute allied offenses of similar import unless the crimes and their elements correspond to such a degree that commission of one offense constitutes commission of the other offense. State v. Preston (1986), 23 Ohio St.3d 64, 66. -11- In Preston, the Ohio Supreme Court resolved the issue of whether aggravated robbery and felonious assault are allied offenses. In the instant case, there are unquestionably certain conduct prohibitions which are common to both the offenses of aggravated robbery and felonious assault. However, the crimes of aggravated robbery and felonious assault do not correspond to such a degree that commission of one offense necessarily constitutes commission of the other offense. For example, appellee was charged with aggravated robbery in violation of 2911.01(A)(1); that is, committing a theft offense while having a deadly weapon on or about his person. One need not have feloniously assaulted a victim to support such a charge. Additionally, aggravated robbery requires the mere possession of a deadly weapon or dangerous ordnance to cause or attempt to cause physical harm to another. Lastly, a charge of aggravated robbery can be supported by an attempt to inflict serious physical harm whereas felonious assault requires an actual infliction of serious physical harm, unless a deadly weapon or dangerous ordnance is used. In this case, it was appellee's shooting of the victim which resulted in the additional charge of felonious assault. In my opinion, the result of barring a felonious assault charge would not be logical since one brandishing a gun during a robbery would face the same charge and sentence as a defendant who actually shot the victim. Id. at 67. Matthews' fourth assignment of error is overruled. In his fifth assignment of error, Matthews argues the trial court improperly consolidated the two cases against him. Under Crim.R. 13, two or more indictments may be tried together if the offenses could have been joined in a single indictment. Crim.R. 8 provides that two or more offenses can be joined in a single indictment when any one of the following applies: (1) the offenses -12- are of the same or similar character; (2) the offenses are based on the same act or transaction; (3) the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan; or (4) the offenses are part of a course of criminal conduct. In this case, the state presented evidence that Matthews was a drug dealer. According to the evidence, on September 19, Steele and Matthews were involved in a drug transaction. The drug transaction took place just three blocks from the Meyer house. During the transaction, Matthews offered to sell Steele an individual unit of crack cocaine. Sixty individual units of crack cocaine were later seized from the Meyer house. During an attempt to rob Steele, Matthews shot him with a handgun described as a revolver. The bullets recovered from Steele's car were non- jacketed bullets the type used in revolvers. The .357 bullets seized from the Meyer house were consistent with those used in the shooting. The offenses of aggravated trafficking, robbery, felonious assault, possession of criminal tools and having a weapon while under disability were committed as part of Matthews' ongoing course of criminal conduct drug dealing. Consequently, the cases were properly consolidated for trial. Matthews cites State v. Nicholl (1978), 9 O.O.3d 285 for the proposition that the joinder of a felonious assault charge with a drug violation based on a search subsequent to a defendant's arrest for the felonious assault was improper. However, Nicholl is inapplicable to the facts of this case. In Nicholl, police were -13- called to investigate a claim that Nicholl threatened one of his neighbors with a gun after the neighbor complained about loud music in Nicholl's apartment. When police came to the apartment, they saw marijuana in plain view on the table. Nicholl was arrested. He then gave the officers permission to search his apartment. Police found a .38 caliber handgun. A warrant was obtained and a subsequent search yielded additional marijuana, stolen driver's licenses and a credit card. In Nicholl, there was no connection between the felonious assault and the drug law violation. Nicholl's dispute with his neighbor was over loud music and was completely unrelated to Nicholl's drug activities. As discussed above, the felonious assault by Matthews was committed during the course of an attempted drug deal. We find the offenses of felonious assault and drug trafficking were properly tried together in this case. Matthews' fifth assignment of error is overruled. Judgment affirmed. -14- It is ordered that Appellee recover of Appellant its 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. JAMES D. SWEENEY, P.J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .