COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70875, 70876 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARCUS LAND, aka : MARCUS WILSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 2, 1997 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR-334765 and CR-333786 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK J. MAHONEY Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT R. CLARICO KATHLEEN W. WOOD The Brownhois Bldg. Assistant Public Defender 4403 St. Clair Avenue 100 Lakeside Place Cleveland, Ohio 44103 1200 West Third Street Cleveland, Ohio 44113-1569 2 O'DONNELL, P.J.: Marcus Land, a.k.a. Marcus Wilson, appeals from a judgment of the common pleas court entered pursuant to a jury verdict in Case No. 334765 finding him guilty of Aggravated Robbery and Having a Weapon While Under a Disability both with firearm specifications and also, in case no. 333786, finding him guilty of Carrying a Concealed Weapon and another count of Having a Weapon While Under a Disability. The record reveals that about 11:30 P.M. on the evening of January 6, 1996, Land, who wore a black knit cap and a Cleveland Cavaliers Starter jacket with an orange lining, exited a gold Lincoln Continental driven by Carlton Workman and approached sixteen-year-old Keith Blume near the intersection of Lincoln and Bayes Avenues in Lakewood, Ohio, asking if Blume knew where Land could get some marijuana. As Blume turned to respond, Land pointed a .32 caliber revolver at him, and with his left hand reached into Blume's pockets and withdrew three single-dollar bills and a can of mace. As Land returned to the car, he turned back toward Blume and again pointing the gun at him, demanded Blume's black trenchcoat. Blume immediately removed his coat which contained a pair of sunglasses, bearing the logo "Thorn Automated Systems," rolled it into a ball and tossed it to Land. Land then ran to the car, jumped into the front passenger seat, and he and Workman drove east on Garfield Avenue. Blume ran home where family members immediately informed the Lakewood Police Department about the 3 incident, and descriptions of the vehicle and its occupants were broadcast over police radio bands. Around 2:00 A.M. that morning, Cleveland Police officers Zamblauskas and Diaz, having heard the radio broadcast earlier, spotted the gold Lincoln Continental, obtained a license plate registration on it, and learned it had been reported as stolen. They then radioed for assistance and when a zone car pulled in front of the Continental at West 117th St. and Bellaire Road in Cleveland, they approached the occupants and arrested them for auto theft. Land, at that time, wore a black knit cap and Blume's black trenchcoat. During an inventory search of the vehicle they discovered a .32 caliber revolver located beneath the passenger seat, a blue and orange starter jacket, a can of mace, and the distinctive "Thorn Automated Systems" sunglasses. Blume later identified the items recovered as his and identified Land as the robber from a photo array at the Lakewood Police Department. The grand jury indicted Land in two separate cases, one in Lakewood for Aggravated Robbery and Having a Weapon While Under a Disability, and the other in Cleveland for Carrying a Concealed Weapon and Having a Weapon While Under a Disability. The court consolidated these cases and conducted a jury trial where the State's evidence included testimony from not only Blume, but also Workman who agreed to testify in exchange for the chance to plead to a probationable offense. The State moved in limine to prohibit defense counsel from cross-examining Workman regarding his original indictment for a non-probationable offense and subsequent amendment 4 of it to a probationable offense. The court granted the motion, but permitted defense counsel to elicit that Workman hoped to get probation in exchange for his testimony. The appellant testified in his own defense, suggesting he had earlier lent his Starter jacket to Workman, who gave him a black trench coat and the two had driven to the west side to meet some females. While returning to the east side, the police arrested them. The jury returned guilty verdicts as to all counts in both cases and the court entered judgment and imposed a sentence of ten to twenty-five years on the Aggravated Robbery with a consecutive term of three years actual incarceration for the gun specification, but concurrent with one and one-half years for Having a Weapon While Under a Disability, all to be served concurrent with two years for Carrying a Concealed Weapon and a concurrent term of one and one-half years for the second conviction of Having a Weapon While Under a Disability. Land now appeals and raises four assignments of error for our review. The first assignment of error states: MR. LAND'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION IN CASE NUMBER 333786 WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Citing State v. Duganitz (1991), 76 Ohio App.3d 363, Land contends his conviction for Carrying a Concealed Weapon is not supported by sufficient evidence since police officers found the revolver in the Lincoln Continental, equally accessible to both 5 Land and Workman, and conducted no tests to prove whether or not Land actually possessed the revolver. The State contends Land's conviction for Carrying a Concealed Weapon is supported by sufficient evidence because police found the revolver concealed beneath the front passenger seat formerly occupied by Land and because Blume identified it as the revolver Land had used to rob him. The issue then, presented for our review, is whether Land's conviction for Carrying a Concealed Weapon is supported by sufficient evidence. In State v. Taylor (1997), 78 Ohio St.3d 15, 18, the court recently set forth a standard for determining whether a conviction is supported by sufficient evidence: * * * [T]he relevant inquiry is whether, after reviewing 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 * * *. Here, the State assumed the burden to prove the elements of Carrying a Concealed Weapon beyond a reasonable doubt. R.C. 2923.12 defines this offense: (A) No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon * * *. Further, R.C. 2923.11 provides the following definition: As used in sections 2923.11 to 2923.24 of the Revised Code: (A) "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed * * * for use as a weapon, or possessed, carried, or used as a weapon. 6 The record in this case reveals that Land used the .32 caliber revolver to rob Blume and, two and one-half hours later, police confiscated the same .32 caliber revolver from beneath the passenger seat of the Lincoln Continental, concealed between the seat and the passenger door. This evidence, thus, leads to a reasonable inference that Land had the weapon concealed ready at hand. Duganitz, supra is distinguishable since, in that case, police officers discovered the concealed revolver on the front seat of the vehicle, easily accessible to and ready at hand for both the driver and/or the passenger, which is different from the evidence presented here. After viewing the evidence and the inferences reasonably drawn therefrom in the light most favorable to the State, as we are required to do by Martin, supra, we conclude that any rational trier of fact could have found all the essential elements of the offense of carrying a concealed weapon proven beyond a reasonable doubt. Accordingly, this assignment of error is overruled. The second assignment of error states: MR. LAND'S RIGHT NOT TO BE PUT IN JEOPARDY TWICE FOR THE SAME OFFENSE AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN HE WAS CONVICTED FOR HAVING A WEAPON WHILE UNDER DISABILITY TWICE FOR THE IDENTICAL ALLEGED ACTIVITIES. Land contends that his separate convictions for Having a Weapon While Under a Disability, in case nos. 333786 and 334765, are based upon a continuing course of conduct and, therefore, violate constitutional protections against double jeopardy. 7 The State contends that Land committed two separate offenses of Having a Weapon While Under a Disability, one occurring on January 6, 1996 in Lakewood, and the other on January 7, 1996 in Cleveland, each with a separate animus, robbery in Lakewood and driving around for two hours in Cleveland after the robbery. The issue presented for our review is whether Land's conduct in having the weapon while under a disability constitutes two offenses and if so whether they are allied offenses of similar import. Instructive on this issue is R.C. 2941.25 which states in relevant part: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import * * * 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 defendant may be convicted of all of them. The court has addressed this statute in Newark v. Vazirani (1990), 48 Ohio St.3d 81 stating in its syllabus: Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate 8 animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship [1988], 38 Ohio St.3d 116, 117, 526 N.E. 2d 816, 817, approved and followed.) Land, of course, urges that one act resulted in both convictions and no separate animus exists nor were these crimes of Having a Weapon While Under a Disability committed separately. R.C. 2923.13 defines Having a Weapon While Under a Disability to include: (A) * * * no person shall knowingly acquire, have carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (3) Such person * * * has been convicted of any offense involving the illegal possession * * * [of] any drug of abuse * * *. Here, the evidence demonstrates that Land utilized the weapon to facilitate his commission of the robbery in Lakewood, Ohio around 11:30 p.m. on January 6, 1996 and chose to continue his possession of the weapon instead of disposing of it after that crime had been committed. When the Cleveland police officers then arrested him, albeit some two hours later, although his act of having the same weapon continued, a separate animus, meaning a separate purpose or intent, existed at that time; and we note the crime of Carrying a Concealed Weapon in Cleveland, occurred separately from the crime of Aggravated Robbery which had occurred earlier in Lakewood. We further note in Newark, supra, the court in considering a similar issue observed at p. 84: It must be determined if the two offenses for which appellant was charged were committed separately or with a separate animus for each crime. (State v. 9 Blankenship, supra.). It is beyond cavil that the two offenses were committed at one and the same moment and thus could not be committed separately. We would emphasize that no time span separated the commission of these two offenses. (Emphasis added). Here, a considerable time span occurred between the arrest of the appellant for auto theft in Cleveland and his earlier conduct in the city of Lakewood. Accordingly, the trial court correctly determined that these crimes are not allied offenses of similar import and this assignment of error is overruled. The third assignment of error states: MR. LAND'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY LIMITED APPELLANT'S CROSS EXAMINATION OF A STATE'S WITNESS. Land argues the court denied his right to confront witnesses against him when it limited cross-examination of Carlton Workman urging that the jury should have been able to consider Workman's motivation to lie and the fact that the State permitted him to plead guilty to a probationable offense. The State urges the court permitted defense counsel to examine Workman regarding his hope for probation as recorded in the transcript at p. 370: Q. [By Defense Counsel] And it's your hope, is it not, that by testifying today, you will get probation, is that not your hope? A. [By Workman] Yes. Thus, the issue presented for our review is whether the court violated appellant's constitutional right to confront witnesses by granting the motion in limine. 10 In State v. Lopez (1993), 90 Ohio App.3d 566, 575, the court stated: In Delaware v. Fensterer (1985), 474 U.S. 15, 20 * * * the Supreme Court noted that the Confrontation Clause does not guarantee a defendant the most effective means of cross-examination: "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Emphasis in original). Further, the court observed in State v. Green (1993), 66 Ohio St.3d 141, 147-8: Cross-examination of a witness is a matter of right, but the "extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court." Alford v. United States (1931), 282 U.S. 687, 691, 694 * * * The right of cross-examination includes the right to impeach a witness' credibility * * *. As stated in Delaware v. Van Arsdall (1986), 475 U.S. 673, 679 * * *, "trial judges retain wide latitude * * * to impose reasonable limits on such cross-examination based upon concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." * * *. Lack of an opportunity to fully cross-examine is harmless error when there is overwhelming, untainted evidence supporting a conviction. Harrington v. California (1969), 395 U.S. 250, 253- 254. In this case, both upon direct examination by the prosecutor and upon cross-examination by defense counsel, Workman stated that he hoped for probation in exchange for his testimony against Land. Further, defense counsel reminded the jury of this in his closing argument at Tr. 449: * * * Then he tells us about this robbery, and how he didn't know anything about this. He didn't have 11 a clue, he was absolutely clueless about it. He was completely in the dark. But he pled guilty to participation in the robbery, puts himself pretty seriously at risk I would say. But he was counting on probation in exchange for his testimony. That's what his hope was. So he has to put it on Marcus. Marcus did everything. Carlton did nothing * * *. We have concluded in this case that the trial court exercised a reasonable limitation on the examination of Workman which effectively informed the jury of this witness's motivation in testifying for the State. Accordingly, this assignment of error is overruled. The fourth assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Land urges that Blume's identification of him is unreliable and that Workman had a personal interest for his testimony which renders the verdict against the manifest weight of the evidence. The State believes this assignment of error is not well taken. Thus, the issue for consideration is whether Land's Aggravated Robbery conviction is against the manifest weight of the evidence. The test to be applied when reviewing such a claim is stated in State v. Martin (1983), 20 Ohio App.3d 172, 175, as recently cited by the Supreme Court in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether 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 12 reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. At trial, the State assumed the burden of proving Land's guilt of aggravated robbery beyond a reasonable doubt. R.C. 2911.01 states the elements of this offense: (A) No person, in * * * committing a theft offense * * * shall * * * : (1) Have a deadly weapon * * * on or about his person or under his control * * * . Here, the record reveals that Blume described a robbery by a 5'6", 170-175 pound black male wearing a knit cap and a blue and orange jacket, carrying a shiny revolver who left in a gold-colored Lincoln Continental. He further reported that the items taken from him at that time included his black trenchcoat, a can of mace and a readily identifiable pair of sunglasses. The evidence further revealed that a few hours later, Cleveland police officers Zamblauskas and Diaz spotted the gold Lincoln Continental, arrested the occupants, recovered the items Blume described and reported that at the time of arrest, Land wore Blume's trenchcoat and a black knit cap. Based upon our review of the record, and after weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we cannot conclude the jury lost its way and created a manifest miscarriage of justice. Accordingly, this assignment of error is overruled. In accordance with our resolution of these assignments of error, the judgment of the trial court is affirmed. 13 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. SPELLACY, J., CONCURS; KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART (SEE CONCURRING AND DISSENTING OPINION, KARPINSKI, J., ATTACHED) PRESIDING JUDGE TERRENCE O'DONNELL 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 journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70875, 70876 STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : AND v. : : DISSENTING MARCUS LAND, aka : MARCUS WILSON : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 2, 1997 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully dissent from the majority opinion regarding the second assignment of error, but concur with the remainder of the majority opinion. If the elements of two offenses sufficiently correspond--as they do for the two charges of possession in the case at bar--the court must then proceed to the second step and determine whether the crimes were committed separately or that there was a separate animus for each crime. Newark v. Vazirani (1990), 48 Ohio St.3d 83. The majority opinion never states precisely what the separate animus is. The court only restates, without comment, what the state argues: that each offense of having a weapon while under a disability had a separate animus, robbery in Lakewood and driving around for two hours in Cleveland after the robbery. (Ante p. 7.) 2 This statement misrepresents the animus for possession. The offense of possessing a gun while under a disability is not attached to another offense, nor is it located within an offense or any event. The offense is merely having a gun despite a disability. The animus, therefore, for both charges is the same: merely desiring to have a gun despite a disability. Citing the case of Newarkv. Vazirani, ante p. 7, the majority opinion relies upon the fact that two hours elapsed between the time of the first and second charge. In Vazirani no time at all elapsed. While such a detail could show two offenses were allied, the converse is not necessarily true. A lapse of time during a continuous act does not necessarily prove the offenses were not allied. Moreover, the Ohio Supreme Court has generally not found the presence or absence of any specific factors to be dispositive on the issue of whether crimes were committed separately or with a separate animus. [Citations omitted.] Instead, our approach has been to analyze the particular facts of each case before us to determine whether the acts or animus were separate. State v. Jones (1997), 78 Ohio St.3d 12, 14. In the case at bar, the possession of the gun was continuous. That the possession of a gun occurred during an aggravated robbery, as the majority notes, is irrelevant to the elements of possession. Because the elements of the crime of possession are not located within another offense, the other offense cannot be used to define a separate event. Nor can the geography of the arrest. That the two charges of 3 possession were filed by two police departments which happen to be in two different municipalities should not be a factor in determining whether the offenses are allied. The majority also focuses on defendant's failure to discard the gun after the aggravated robbery. Had defendant discarded his gun, then there would have been two separate acts. However, the defendant's failure to discard his gun, that is, his failure to interrupt his possession, can hardly make a continuous act into two acts. Nor can this detail affect the animus. Defendant had but a single motive--to have a gun. Both convictions rest upon identical conduct. .