COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70333 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : AVERY LEE HOLLAND : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 3, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-330582B JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MARK T. RUDY, ESQ. Cuyahoga County Prosecutor 11519 Buckeye Road STEVEN A. DEVER, ESQ. Cleveland, Ohio 44104 Assistant County Prosecutor 8th Floor Justice Center Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Avery Holland, defendant-appellant, appeals the trial court's decision convicting him of aggravated murder and aggravated robbery and sentencing him accordingly. Holland assigns the following three errors for our review: I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION RELATIVE TO COUNT ONE, AGGRAVATED MURDER, WHERE THE ELEMENTS OF PRIOR CALCULATION AND DESIGN WERE NOT PROVEN BEYOND A REASONABLE DOUBT, AND THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO CONSECUTIVE TERMS OF INCARCERATION. II. THE TRIAL COURT ERRED WHERE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A GUILTY VERDICT. III. THE DEFENDANT'S GUILTY VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. The State of Ohio ("State") charged Avery Holland with aggravated murder and aggravated robbery of Vincent Drost. At trial, the State presented evidence that Holland and four males were roaming an area in Lakewood looking to obtain money in whatever way they could. Holland was armed with a knife and Anthony Wilson, one of the males, had a tree limb. Drost was walking on the opposite side of the street when the males observed him. They crossed over to where Drost was located and walked towards him. Drost crossed to the other side of the street and the males followed. -3- Holland approached Drost and asked him for change for ten dollars. Before he could reply, Holland stabbed him once in the chest. Thereafter, Wilson began striking Drost in the head with the tree limb. Drost dropped to his hands and knees, and Holland stabbed him in the back. While Drost was on the ground, Holland took his wallet. Joseph Falat witnessed the attack. He yelled to the males to stop. Leslie Flake also heard the attack and saw Holland take Drost's wallet. Holland removed the contents of the wallet and dropped the wallet in a nearby yard. Holland, Wilson, Willliams and Antonio Davis returned to Antonio Davis' house. Lawrence Davis did not accompany them to Davis' house. While at the house, Holland became angry when he learned the wallet contained only one dollar ($1.00) and three bus tickets. Holland decided to look for another victim, and the others accompanied him. In the area where the attack occurred, Officer Patrick Fiorilli observed Lawrence Davis, one of the males. Officer Fiorilli detained Davis, patted him down, and released him. During a search of the area, Fiorilli located the wallet and the contents. Ultimately Fiorilli encountered all of the males and held them for the witnesses to identify them. Falat was taken to the scene to identify the suspects. Falat identified Wilson and Antonio Davis as two of Drost's attackers. Wilson and Antonio Davis were arrested. Holland began screaming "take me too" at the officers while Antonio Davis was being arrested. Holland was arrested for -4- disorderly conduct while intoxicated. Williams and Lawrence Davis were arrested later. At the time of his arrest, Holland had a one dollar bill and three bus tickets in his pocket. Officer Dennis Tisza, the Lakewood booking officer, noticed blood on Holland's shoes, which was later identified as Drost's blood. Antonio Davis and Kevin Williams gave statements implicating Holland in the murder and robbery of Drost. Holland and the four other males were charged with aggravated murder, aggravated murder while committing aggravated robbery, and aggravated robbery. At Holland's trial the State presented testimony from Kevin Williams and Antonio Davis, who again named Holland as the person who stabbed and robbed Drost. The State also presented testimony from Joseph Falat and Leslie Flake, who witnessed the attack. Flake named Holland as the person who stabbed Drost and stole his wallet, but Falat identified Wilson as the perpetrator. Holland testified in his own defense and claimed that Wilson stabbed Drost while Davis hit him with the tree limb. He admitted being at the scene but denied any involvement of the crime. He said he walked near the body and may have gotten blood on his shoes at that time. Holland was convicted of both aggravated murder counts and of aggravated robbery. The two aggravated murder counts were merged for sentencing purposes. Holland was sentenced to thirty years to life for aggravated murder and a consecutive ten to twenty-five years for aggravated robbery. This appeal followed. -5- In his first assignment of error, Holland raises two arguments. He argues that his convictions were not supported by sufficient evidence, and also he argues the trial court erred in sentencing him to consecutive terms in prison for aggravated murder and aggravated robbery. We will first consider his sufficiency argument. The standard of review for sufficiency of evidence was set forth in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. "When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether after viewing the evidence in 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." State v. Garner (1995), 74 Ohio St.3d 49, 60. Holland argues the State did not prove prior calculation and design beyond a reasonable doubt. "Prior calculation and design requires a scheme designed to implement the calculated decision to kill." State v. Ballew (1996), 76 Ohio St.3d 244, 250. In this case, the State produced evidence that Holland and his friends went out to obtain money in whatever way they could. Kevin Williams, one of the four males, testified Holland had the knife in his hand as the group walked up the street. According to Williams, the knife was in the open position and Holland said he was going to "get somebody." (Tr. 277.) Williams testified both he and Holland had listened to a song entitled "Creeping on a Come Up." Williams described what "creeping on a come up" means. -6- Q: Let's not beat around the bush. What does creeping on a come up mean? A: Go out and do what you got to do to get what you want. Q: Including robbing someone, correct? A: If that's what you have to do. Q: Including stabbing someone to death, correct? A: If that's what you have to do. (Tr. 302.) Williams also stated that "creeping on a come up" was not just going out to rob someone, but could be "whatever you have to do to get pay." (Tr. 309.) This evidence reveals a plan to use whatever force was necessary to obtain money. Holland stabbed Drost in the heart after asking for change for ten dollars. Wilson hit Drost with the tree limb. When Drost fell, Holland stabbed him in the back. Viewed in a light most favorable to the State, this evidence is sufficient to establish the element of prior calculation and design. As for his sentencing argument, we point out that his brief fails to state a basis for his allegation of error. Nevertheless, Holland argued at trial that the sentence violated the double jeopardy clause because the aggravated robbery was "very much a part" of the murder. On this issue, the law is clear. "Even where there was only one victim, different counts alleging different accompanying felonies under R.C. 2301.01(B) constitute separate -7- offenses." State v. Crago (1994), 93 Ohio App.3d 621. See also State v. Grant (1993) 67 Ohio St.3d 465. Furthermore, the consecutive sentence was authorized under Ohio law. Under R.C. 2929.41(B), a sentence of imprisonment shall be served consecutively to any other sentence of imprisonment when the trial court specifies that it is to be served consecutively. The limits on consecutive sentences are set forth in R.C. 2929.41(E), which provides: (E) Consecutive terms of imprisonment imposed shall not exceed: (1) An aggregate minimum term of twenty years when the consecutive terms imposed include a term of imprisonment for murder and do not include a term of imprisonment for aggravated murder. (2) An aggregate minimum term of fifteen years, plus the sum of all three-year terms of actual incarceration imposed pursuant to section 2929.71 of the Revised Code and the sum of all six-year terms of actual incarceration imposed pursuant to section 2929.72 of the Revised Code, when the consecutive terms imposed are for felonies other than aggravated murder or murder; (3) An aggregate term of eighteen months, when the consecutive terms imposed are for misdemeanors. In this case, Holland's sentence included a term of imprisonment for aggravated murder and did not involve any misdemeanors. Accordingly, R.C. 2929.41(E)(1) and (2) are clearly inapplicable to this case. In State v. Elam (1994), 68 Ohio St.3d 585, at syllabus, the Ohio Supreme Court held the fifteen-year limit on an aggregate minimum term of incarceration set by R.C. 2929.41(E)(2) does not apply to multiple terms imposed consecutively to a sentence for aggravated murder. Accordingly, -8- R.C. 2929.41(E) does not apply to limit the consecutive terms of imprisonment. Having determined that Holland's sentence was not violative of the double jeopardy clause and was authorized by Ohio law, we conclude the trial court did not err in sentencing him consecutively for aggravated murder and aggravated robbery. Consequently, Holland's first assignment of error is overruled. In his second assignment of error, Holland challenges the sufficiency of all the State's evidence to sustain his convictions. In resolving this assigned error, we are guided by the Jenks-Garner standard on sufficiency. In light of this standard, we conclude the State presented the testimony of three eyewitnesses who identified Holland as the person who fatally stabbed Drost. Three witnesses testified that Holland took Drost's wallet. Drost's blood was found on Holland's shoes and one of his socks. Drost was robbed of $1.00 and three bus tickets. One dollar and three bus tickets were found in Holland's pocket when he was arrested. We conclude this evidence was sufficient to establish Holland's guilt beyond a reasonable doubt for aggravated murder and aggravated robbery. Consequently, Holland's second assignment of error is overruled. In his third assignment of error, Holland argues his convictions were against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless this court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and consider- ing the credibility of witnesses, concludes that the jury clearly -9- 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. Thompkins (1997), 78 Ohio St.3d 380, 387, State v. Martin (1983), 20 Ohio App.3d 172, 175; Tibbs v. Florida (1982), 457 U.S. 31. A conviction will not be reversed as against the manifest weight of the evidence where there is substantial, competent, and credible evidence supporting the conclusion beyond a reasonable doubt. State v. Farris (1991), 71 Ohio App.3d 817, 822. Holland argues inconsistencies between the witnesses' testimony rendered the evidence presented unbelievable. We disagree. We believe the jury properly resolved any conflicts in this case. The jury chose to believe the witnesses who identified Holland as the person who stabbed Drost to death and removed his wallet. We conclude Holland has not suffered a manifest miscarriage of justice that would necessitate a reversal of his conviction. Holland's third assignment of error is overruled. Judgment affirmed. -10- 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. DYKE, J., and KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .