State v. Doyle

133 N.E.3d 890

2019 Ohio 979

STATE of Ohio, Plaintiff-Appellee

v.Cardell DOYLE, Defendant-Appellant

No. 107001

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: March 21, 2019

Joseph V. Pagano, P.O. Box 16869, Rocky River, Ohio 44116, ATTORNEY FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, By: James M. Rice, Assistant Prosecuting Attorney, Justice Center - 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Headen, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.:

ON RECONSIDERATION¹

{¶1} On reconsideration, the original announcement of State v. Doyle , 8th Dist. Cuyahoga No. 107001, 2019-Ohio-551, 132 N.E.3d 195, released February 14, 2019, is hereby vacated and substituted with this opinion. The state timely filed a motion for reconsideration seeking clarification on an issue of law discussed in the original panel decision. We believe the clarification is necessary to ensure uniformity in the application of the law.

{¶2} Cardell Doyle appeals his conviction, entered following a bench trial, for aggravated robbery and an attendant three-year firearm specification. He was also sentenced to an additional three-year term for a firearm specification attendant to another theft offense, which had been merged into the aggravated robbery under R.C. 2941.25. A ten-year aggregate term of imprisonment resulted, with the two three-year terms on the firearm specifications being imposed to be served prior and consecutive to the four-year sentence for the aggravated robbery offense.

{¶3} The charges stemmed from a carjacking. Doyle and his codefendant robbed the victim at gunpoint during daylight hours, and the entire episode was recorded on a private surveillance camera. Doyle approached the victim with a handgun, which was later found by police in the glove compartment of the vehicle used in the commission of the crime, and demanded that the victim exit her car and give him the keys. Doyle and his codefendant, each driving one of the vehicles, fled the scene. The victim immediately provided the emergency dispatcher with a general description of the offenders, including their respective hairstyles and a general description of their vehicle. The stolen car was rented and had an anti-theft device installed. The rental company was able to track and disable the vehicle, allowing officers to locate the suspects within 30 minutes of the theft.

{¶4} When officers arrived to secure the stolen vehicle, Doyle and the codefendant, both of whom fit the victim's generic description, were seen exiting their vehicle, which was parked near the stolen one. Doyle exited from the front passenger seat. Doyle claims that the officers first saw him in the driveway where their vehicle was parked. Evidently, the testifying officer's notes did not contain any information about where Doyle was located when the officers arrived. The fact that Doyle was seen exiting the codefendant's vehicle, however, was otherwise recorded in the official report generated by another officer. The firearm used during the robbery was found in the glove compartment of the codefendant's vehicle, and forensic evidence placed Doyle in the front passenger seating area. As officers approached the suspects, Doyle fled into a nearby structure. Officers verified that Doyle did not exit the building, and then they obtained a search warrant to enter it. Doyle was found in a wall, hiding behind the insulation.

{¶5} Doyle's identity was the primary issue at trial. The victim's pretrial identification was less than certain and was predominantly based on the generic description provided to the emergency dispatcher. During her trial testimony, the victim was certain Doyle was the person who robbed her at gunpoint. She based her in-court identification on his facial features (his hairstyle had been changed from the day of the crime). The trial court, sitting as the trier of fact, did not rely on the victim's in-court identification. Instead, the trial court considered several other facts that demonstrated identity: (1) Doyle's flight and attempt to evade arrest; (2) Doyle and his codefendant's proximity to the stolen vehicle and that they matched the victim's generic description; (3) the fact that Doyle left forensic evidence in the front, passenger area of the codefendant's vehicle, where the victim saw him sitting before the robbery, and from which officers saw Doyle exit upon arriving at the scene; and (4) the fact that the weapon used in the robbery was found in the glove compartment of that same vehicle in a location consistent with Doyle's seating location.

{¶6} Doyle timely appealed his conviction, advancing five assignments of error, which will be discussed out of order for the sake of continuity. Upon reviewing the sentencing entry, supplemental briefing was sua sponte sought on whether the sentence imposed on the three-year firearm specification attendant to a merged offense could be imposed notwithstanding the merger. Both parties responded. Doyle's assignments of error are overruled, but we reverse the sentence imposed on the firearm specification attendant to the grand theft count, which merged with the aggravated robbery conviction under R.C. 2941.25.

{¶7} In the first assignment of error, Doyle claims that the victim's in-court identification was impermissibly suggestive and that the trial court should have suppressed that identification. There is no error. The trial court agreed with Doyle's sentiment and found that the in-court identification was unduly suggestive. Tr. 460:15-25. Although the identification was not suppressed, the court expressly concluded that the victim's in-court identification of Doyle is not sufficient to prove his identity as the perpetrator of the crime. Tr. 461:5-7.

{¶8} Instead of relying on the in-court identification, the trial court concluded that Doyle committed the robbery because of (1) the generic description of the offenders, which included their respective hairstyles, that permitted the identification of the suspects as officers arrived to secure the stolen vehicle; (2) the victim's ability to describe the firearm used in the robbery that matched the one found in the glove compartment of the codefendant's vehicle near where Doyle was seen exiting when officers arrived; (3) the testimony of responding officers who witnessed Doyle exit the front passenger seat of the codefendant's vehicle and run into the residential structure; (4) the forensic evidence placing Doyle in the front passenger seat of the codefendant's vehicle near where the recovered firearm was discovered; and (5) the fact that Doyle attempted to conceal himself within the insulation behind the walls in the building into which he fled in an attempt to evade arrest. Even if, for the sake of discussion, the failure to suppress the in-court identification is assumed to be error at a bench trial, the failure to exclude evidence the trial court expressly rejects is the epitome of harmless error. Any perceived error with the failure to suppress that evidence could not have affected the substantial rights of the offender under Crim.R. 52(A).

{¶9} In the fourth assignment of error, Doyle claims that the surveillance video was not properly authenticated under Evid.R. 901(A) because "the record is not clear what video [the authentication witness] was identifying; no exhibit number was referenced for purposes of identification." Notwithstanding the fact that no objection was timely raised to preserve anything but plain error under Evid.R. 103(A)(1), the state identified the video as "State's Exhibit 2" while playing the video for the witness to authenticate. Tr. 150:16-19. There is no error with the authentication of the video, much less plain error. The record clearly establishes which video was being authenticated.

{¶10} In the second and third assignments of error, Doyle claims his conviction is against the weight of the evidence. Although Doyle couched his second assignment of error in terms of sufficiency of the evidence, he concedes that the argument is based on inconsistencies within that evidence. Those inconsistencies must be resolved in favor of the state. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus ("[t]he relevant inquiry is whether, after viewing 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"); see also State v. Gordon , 8th Dist. Cuyahoga No. 93059, 2010-Ohio-777, 2010 WL 728117, ¶ 8 (standard for sufficiency of the evidence precludes appellate courts from considering inconsistencies in evidence because the evidence must be considered in a light most favorable to the state). In light of the concession, both assignments of error will be addressed under the weight-of-the-evidence review.

{¶11} When reviewing a claim challenging the weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts or inconsistencies in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Generally, determinations of credibility and weight of the testimony are reserved for the trier of fact. State v. Lipkins , 10th Dist. Franklin, 2017-Ohio-4085, 92 N.E.3d 82, ¶ 36, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶12} The trier of fact "may take note of the inconsistencies and resolve them accordingly, ‘believing all, part, or none of a witness's testimony.’ " Id. , quoting State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio...