COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72281 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : CARROLL D. PLESS : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 21, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Cuyahoga County Common Pleas Court, Case No. 269513 JUDGMENT: SENTENCE MODIFIED AND, AS MODIFIED, JUDGMENT AFFIRMED DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Defendant-Appellant: Plaintiff-Appellee: DAVID L. DOUGHTEN STEPHANIE TUBBS JONES 4403 St. Clair Avenue Cuyahoga County Prosecutor Cleveland, Ohio 44103 GAIL DENISE BAKER Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 O'DONNELL, TERRENCE: This is the second time our court has considered issues raised by Carroll Dean Pless arising from his involvement in the death of his former girlfriend, Sherry Lockwood. In the first appeal, the -2- common pleas court convicted Pless of aggravated murder, sentenced him to death, and our court affirmed that decision. However, the Ohio Supreme Court reversed that determination and remanded the case for a new trial because the record did not contain a signed jury waiver. Following remand, the trial court retried Pless and entered judgment pursuant to jury verdicts, finding him guilty of aggravated murder, aggravated burglary, and kidnapping and, pursuant to a bench-trial verdict, finding him guilty of having a weapon while under a disability. Based on the following analysis, we affirm this judgment. The record reveals that around 8:30 p.m. on the evening of July 11, 1991, Pless abruptly entered the home of Sherry Lockwood, located at 1711 W. 69th Street in Cleveland, chased her out the front door, grabbed her by the hair in her front yard and, as she tried to leave the yard, dragged her back up onto the porch of her house where he shot her twice, once in the right side of her head and a second time, a contact gunshot wound to the right side of her neck. Prior to her murder, Sherry Lockwood had been watching television with her daughter, Sabrina, who had gone to the basement of the home as Pless entered, and saw Pless chase her mother out of the house. Eyewitnesses testified they saw Pless chase Lockwood into her front yard, grab her by the hair as she tried to flee, and drag her back up onto the porch where they heard her say, No no, and then they saw him shoot her twice at point blank range, and then walk down W. 69th Street smiling at them. Pless surrendered himself at the Justice Center the following evening. -3- Additional relevant evidence presented at trial demonstrated that on three prior occasions, Pless had told Sherry Lockwood he intended to kill her. Initially, on March 19, 1990, Lockwood called the Cleveland Police Department reporting a man pounding on her doors and windows threatening to kill her. Officer Charlene Glenn and her partner responded to the call and, upon arrival, they found Lockwood pointing at Pless in his car. Following a motor vehicle chase, the officers arrested Pless and returned him to the house. Officer Glenn then observed Lockwood's face which appeared wet from crying and flushed, standing there shaking really bad and frantic, saying that Pless was going to kill her and that she had called the police because she didn't know what else to do. The second time Pless threatened Lockwood occurred on November 8, 1990 when, after a confrontation with Lockwood at Veryl's Tavern, Pless followed Lockwood and Daniel Miller to her home, threw a rock through the living room window, stuck his torso through the window, threatened Miller, took Lockwood's shoes and purse, and then cut the telephone lines to the house. Pless then yelled to Lockwood Whenever I catch up to you, I will kill you. Following that incident, Cleveland police arrested Pless for aggravated burglary. Shortly after his arrest, on December 6, 1990, as Lockwood and her former husband, Michael, drove to his brother's house on W. 42nd Street near Lorain Avenue, Pless blocked their vehicle with his car, and smashed the driver's window of their car with a tire iron and again told Lockwood he intended to kill her. -4- After Pless surrendered himself at the Justice Center, the grand jury indicted him on two counts of aggravated murder, one alleging prior calculation and design and the other alleging murder while committing aggravated burglary, and on separate counts of aggravated burglary, kidnapping, intimidation and having a weapon while under a disability. Following his retrial and convictions on these counts, the court sentenced him to two concurrent terms of life imprisonment with no possibility of parole until he had served thirty full years of imprisonment, and to consecutive terms of ten actual to twenty-five years on both the aggravated burglary and kidnapping convictions, and a consecutive term of three-to-five years for having a weapon while under a disability. Pless now appeals raising five assignments of error for our consideration. The first states: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF AGGRAVATED MURDER PURSUANT TO R.C. S2903.01(A). Pless contends his conviction for aggravated murder under R.C. 2903.01(A) is not supported by evidence sufficient to establish that he caused Lockwood's death with prior calculation and design. Crim.R. 29(A) provides in relevant part: * * * The court upon motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. A recognized test for sufficiency of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: -5- As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319; * * *. This test has also been cited in State v. Taylor (1997), 78 Ohio St.3d 15, where the court stated at 18: * * * the 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 * * *. Thus, the sufficiency test raises a question of law for the court to decide regarding whether the state has put forth evidence required to prove each of the essential elements of the offense beyond a reasonable doubt, prior to the time the jury may consider the case. In applying this test, the court should consider the evidence and all reasonable inferences drawn therefrom in a light most favorable to the state. In conducting this review, we note the court may not weigh the evidence to resolve the sufficiency question. Here, the state assumed the burden of proving beyond a reasonable doubt the essential elements of R.C. 2903.01(A), aggravated murder, which stated on July 11, 1991: No person shall purposely, and with prior calculation and design, cause the death of another. In S tate v. Cotton (1978), 56 Ohio St.2d 8, the court explained circumstances which justify a finding of prior calculation and design in its syllabus: 3. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. Here, the state presented evidence that on three separate occasions, Pless threatened to kill Lockwood. Further, that on July 11, 1991, Pless entered Lockwood's home armed with a gun, chased her out the front door, and dragged her by her hair back up to her front porch, where he shot her twice in the head at point- blank range. After viewing this evidence in a light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt that Pless had sufficient time and an opportunity to plan the act of killing Lockwood and by firing a bullet into her head he implemented his calculated decision to kill her. Accordingly, we have concluded that his conviction for aggravated murder with prior calculation and design is supported by sufficient evidence. The second assignment of error states: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN CONVICTIONS OF FELONY MURDER, THE CORRESPONDING CAPITAL SPECIFICATIONS PURSUANT TO R.C. 2929.04(A)(7) AND AGGRAVATED BURGLARY. Pless contends that the evidence is insufficient to support his convictions on the crimes of aggravated burglary and aggravated murder while committing aggravated burglary, arguing that he did not trespass in Lockwood's home, and claiming that the state failed to prove he entered with the intent to commit a felony. In this case, the state assumed the burden to prove the essential elements of aggravated murder, as defined in R.C. 2903.01(B): No person shall purposely cause the death of another while committing or attempting to commit * * * aggravated burglary * * *. R.C. 2911.11 articulates the essential elements of aggravated burglary and, on July 11, 1991, stated in pertinent part: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * with purpose to commit therein * * * any felony, when any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; (2) The offender has a deadly weapon * * * on or about his person or under his control; (3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. In this regard, the state presented evidence that on July 11, 1991, Pless uninvitedly entered Lockwood's home with a weapon, that Lockwood's daughter saw him chase her out the front door of the home, that neighbors saw him catch her in her front yard as she tried to escape, and watched him drag her by the hair to the front porch where he killed her, and that he had threatened her life on three prior occasions. After viewing this evidence in a light most favorable to the state, a rational trier of fact could have concluded that Pless trespassed in Lockwood's home, an occupied structure, with a deadly weapon, for the purpose of committing the crime of aggravated murder with prior calculation and design. We conclude this evidence is sufficient to support Pless' convictions for aggravated burglary and aggravated murder while committing aggravated burglary and accordingly overrule this assignment of error. The third assignment of error states: THE TRIAL COURT ERRED BY ALLOWING OFFICER GLENN TO TESTIFY TO THE DECEDENT'S HEARSAY STATEMENT REGARDING AN INCIDENT REMOTE TO THIS CHARGE. At Pless' retrial, defense counsel made an oral motion in limine to prevent Patrolman Charlene Glenn from testifying to anything that Sherry Lockwood said in connection with the March 19, 1990 incident. In response, the prosecutor pointed out to the trial judge that our court of appeals had previously considered whether the admission of Officer Glenn's testimony regarding the March 19, 1990 incident constituted an abuse of discretion on appeal of Pless' first trial, and we concluded that it constituted an excited utterance and as such is not excluded as inadmissible hearsay evidence. On this appeal, Pless urges he has been denied the right to confront Lockwood who made the statements in Officer Glenn's presence, and that the court should not have permitted the officer to testify to what Lockwood said that Pless had told her. At issue is Officer Glenn's testimony who, after responding to a call made by Lockwood to police, apprehended Pless, returned him to Lockwood's home, and after observing Lockwood standing on her porch with her face still wet from crying and real flush, redlike, Glenn testified in part, She said he was going to kill her and she feared for her life and that's why she called the police. Evid.R. 803(2) provides: Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Based on the circumstances and conditions existing at the time Lockwood delivered the statement in Glenn's presence, we conclude the trial court did not abuse its discretion in admitting these statements. Further, we are aware of the definition of hearsay as contained in Evid.R. 801(C): * * * a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. No evidentiary problem exists here because the state offered the testimony of officer Glenn to establish the element of prior calculation and design, not for the purpose of proving the truth of the matter asserted. Accordingly, the court did not abuse its discretion in admitting this testimony, nor violate Pless' right to confrontation. This assignment of error is therefore overruled. The fourth assignment of error states: THE INTRODUCTION OF EVIDENCE OF ALLEGED OTHER ACTS THAT OCCURRED AT A TIME REMOTE TO THE CHARGED OFFENSE WAS NOT ADMISSIBLE UNDER OHIO RULE OF EVIDENCE 404(B). Pless urges the state utilized evidence of other acts in contravention of Evid.R. 404(B) to establish that he would commit the offense with prior calculation and design as a substitute for actual evidence and thereby violated his Fifth and Fourteenth Amendment rights. He complains of evidence introduced that in November, 1991, he dropped a lit cigarette down the back of decedent's blouse as he, the decedent and Daniel Miller patronized a tavern and that he pushed decedent to the floor; that on March 19, 1990, Glenn testified he again threatened to kill her; and that on December 6, 1990, he again confronted the decedent then in the company of her husband, Michael Lockwood, smashed the car windows with a tire iron and knifed Michael Lockwood in the neck, and had been indicted for felonious assault. We begin our consideration here by reviewing Evid.R. 404(B) which states: * * * Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The incidents of which Pless complains demonstrate motive, opportunity, intent, plan and identity, and as such are admissible in evidence. Accordingly, admission of this evidence constitutes neither a constitutional deprivation of rights nor an abuse of judicial discretion. This assignment of error is meritless. The fifth assignment of error states: THE TRIAL COURT ERRED BY ORDERING TWO CONVICTIONS THAT ARE ALLIED OFFENSES PURSUANT TO R.C. S2941.25 TO BE SERVED CONCURRENTLY. Pless contends the trial court erred when it convicted and sentenced him on two counts of aggravated murder for a single killing, and urges the second conviction be vacated. The state argues the court did not err in sentencing because, although convicted of two counts of aggravated murder, it sentenced him to serve concurrent terms of thirty years to life, which has the effect of a single punishment. The issue then presented for our review is whether the trial court erred when it sentenced Pless on two counts of aggravated murder. In State v. Waddy (1992), 63 Ohio St.3d 424, the court stated in relevant part at 447: * * * where a defendant who kills only one victim is convicted of two aggravated murder counts, the trial court may sentence on only one count. In this case, Pless received two concurrent terms of incarceration for the murder of one victim. These two sentences are merged, and appellant is sentenced to one term of thirty years to life for the aggravated murder of Sherry Lockwood, consecutive with the other parts of the sentence imposed by the trial court judge. Accordingly, this error is hereby corrected. Sentence modified and, as modified, judgment affirmed. 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 M. PORTER, P.J., JAMES D. SWEENEY, J., CONCUR 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 .