State v. Croom, CASE NO. 12 MA 54

2013 Ohio 5682

STATE OF OHIO, PLAINTIFF-APPELLEE, v. STANLEY CROOM, DEFENDANT-APPELLANT.

CASE NO. 12 MA 54

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Dated: December 13, 2013

OPINION

CHARACTER OF PROCEEDINGS:

Criminal Appeal from Common Pleas

Court, Case No. 10CR35.

JUDGMENT:

Affirmed in part; Reversed in part;

Remanded.

APPEARANCES:

For Plaintiff-Appellee:

Attorney Paul Gains

Prosecuting Attorney

Attorney Ralph Rivera

Assistant Prosecuting Attorney

For Defendant-Appellant:

Attorney Douglas King

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Mary DeGenaro

VUKOVICH, J.

{¶1} Defendant-appellant Stanley Croom appeals after being convicted in the Mahoning County Common Pleas Court of aggravated robbery with a firearm specification, having a weapon while under disability, and attempted aggravated murder with a repeat violent offender specification. Appellate counsel raises issues with the sufficiency of the evidence, the weight of the evidence, and the victim's identification from a photographic array. These arguments are overruled.

{¶2} Counsel also argues that the repeat violent offender specification and the weapon under disability conviction should be reversed because there was no jury waiver signed by the defendant, made in open court, and filed in the case. The laws dealing with waiver of a jury trial are inapplicable to the repeat violent offender specification. However, they are applicable to the weapon under disability charge. The Supreme Court requires strict compliance with the statutory test for waiving a jury trial. Since there was not strict compliance here, the weapon under disability conviction is reversed and remanded. Judgment as to the other offenses is affirmed.

STATEMENT OF THE CASE

{¶3} Around 7:20 p.m. on December 29, 2009, a man entered Belleria Pizza in Youngstown with a gun and demanded money from the register. The cashier hit a panic button, which alerted the Youngstown police. When she could not open the register, the robber left the store. She reported to Youngstown police that the robber was a black male around 50 years old wearing a black coat with brown fur around the hood. It was also reported that he was approximately 6 feet tall and 200 pounds.

{¶4} The first responding officer watched the store's surveillance video and noticed that the robber had on a black wave cap and that he raised the fur-trimmed hood on his dark jacket as he neared the register. In addition, the officer noticed that the robber wore dark gloves with yellow writing on them.

{¶5} A bystander outside of the restaurant reported the robbery to a police officer at Youngstown State University, stating that the robber was a dark-complected black man wearing a thick, black coat with fur and that another black male wearing ablack hat was the get-away driver of an older model dark pink or maroon Lincoln with damage to the rear. (Tr. 687).

{¶6} A police officer listening to the bulletin realized that she was familiar with the vehicle described therein. She testified to its distinctive "weird" color and the rear-end damage. She knew where the owner of the car lived because she worked security at his apartment building. (Tr. 666). She did not find the car there, but she did see it while patrolling the streets less than an hour after the robbery, and she thus effected a stop of the vehicle. (Tr. 667).

{¶7} Defendant-appellant Stanley Croom, the car's owner whom she recognized, was driving. (Tr. 670). Jeffrey Shorter, appellant's co-defendant in the robbery case, was the passenger. (Tr. 673). A black hat and black gloves with yellow writing were found in the vehicle. (Tr. 651). There was a large amount of DNA on both items that belonged to Shorter, and the gloves also had some DNA consistent with appellant's DNA (but also consistent with one out of fifty people).

{¶8} Two days after the robbery, a detective showed two six-person photographic arrays to the victim. The victim picked the photograph of appellant from the second array. She did not identify anyone from the first array, which contained Shorter's photograph.

{¶9} In January 2010, appellant was indicted for aggravated robbery with a gun specification and having a weapon while under a disability. He filed a motion to suppress the photographic identification. A hearing was held, and the court denied the motion.

{¶10} In January 2012, a superseding indictment was filed adding charges of attempted aggravated murder with a repeat violent offender specification and retaliation. These charges were based upon the report of a fellow jail inmate, who stated that appellant asked him to eliminate the victim.

{¶11} Appellant and Shorter were tried together. Shorter was represented by counsel, and appellant represented himself. Pursuant to an agreement between the state and the defense, appellant's weapon under disability charge and his repeatviolent offender specification were tried to the court while the other charges were tried to a jury. Appellant was found guilty of all charges.

{¶12} On March 1, 2012, the court sentenced appellant to eleven years for attempted aggravated murder, three years for the repeat violent offender specification, ten years for aggravated robbery, three years for the firearm specification, and three years for having a weapon under disability, for an aggregate sentence of thirty years. The retaliation count was merged into the attempted aggravated murder count. Appellant filed a timely notice of appeal.

ASSIGNMENT OF ERROR NUMBER ONE

{¶13} Appellant's first assignment of error contends:

{¶14} "A NUMBER OF THE DEFENDANT/APPELLANT'S CONVICTIONS HEREIN ARE BASED ON LEGALLY INSUFFICIENT EVIDENCE."

{¶15} Sufficiency of the evidence is a test of adequacy (as opposed to credibility or weight of the evidence). State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Appellant raises separate sufficiency arguments regarding each of the three offenses and the two specifications. We thus separately evaluate the elements of each offense and each specification

Attempted Aggravated Murder

{¶16} Appellant was convicted of attempted aggravated murder under R.C. 2903.01(A) and R.C. 2923.02(A). This type of aggravated murder involves purposely causing the death of another with prior calculation and design. R.C. 2903.01(A). The attempt alleged in this case is characterized by purposeful conduct that, if successful, would constitute or result in the offense. R.C. 2923.02(A) (purposeful is the applicable mental state because that mental state is required for the underlying offense of aggravated murder).

{¶17} An attempt occurs when one purposely does or omits to do something that constitutes a substantial step in a course of conduct designed to culminate in the commission of the offense. State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 95, citing State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976). The substantial step must be strongly corroborative of the criminal purpose, e.g. it demands police intervention in order to prevent the crime at the time the criminal intent becomes apparent. Id.

{¶18} Appellant argues that words are not acts and that his alleged words, although they could be used to show the intent part of the attempt test, cannot be used to show the substantial step part of the test. He urges that the substantial step part of the attempt test requires an overt act and implies that it must be in the form of physical movements. He notes that the inmate had no intent to carry out the murder and that appellant could not take a substantial step toward the alleged plan himself because he remained in jail.

{¶19} In the Group case, the defendant shot two people, one of whom survived and identified him. While awaiting trial in jail, the defendant asked a fellow inmate, who was soon to be released, to fire-bomb the survivor's house. The defendant told the other inmate that the victim no longer lived in the house and the bombing was to scare her and to lead the police on another trail. The defendant offered $150,000 in cash that he had hidden away and offered to help the other inmate dissuade a witness from testifying in his case. He instructed the other inmate how to make the bomb, how to light it, and where to throw it. He also told him to leave a keychain with a certain name on it at the scene. Thereafter, the defendant wrote letters to the other inmate in which he referred to something he needed done and provided the victim's address. The released inmate went to the victim's house, and when he realized the victim was living in the house, he went to the prosecutor with the defendant's letters.

{¶20} The Supreme Court noted that two Ohio courts and many state courts around the country have taken the view that merely soliciting another to commit a crime does not constitute attempt. Id. at ¶ 96. The Court initially stated that Groupdid more than merely solicit the firebombing because "[h]e took all action within his power, considering his incarceration, to ensure that the crime would be committed." Id. at ¶ 97. Then, the Court went on to adopt a position that solicitation could constitute the necessary step depending upon the circumstances of the case.

{¶21} In doing so, the Group Court reviewed a case where a defendant instructed a fellow inmate, who was expected to be released soon, that he should kill someone outside the jail (telling the other inmate identifying details about the intended victim, how he should do it, and how he would be paid). Id. at ¶ 98, citing State v. Urcinoli, 321 N.J.Super. 519, 729 A.2d...