State v. Fuller

2012 Ohio 1979

STATE OF OHIO Plaintiff-Appellee v. JOHN FULLER Defendant-Appellant

Appellate Case No. 24598 Trial Court Case No. 2010-CR-2328/1

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Dated: May 4, 2012

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0034517, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. #0034517, 135 West Dorothy Lane , Suite 209, Kettering, Ohio 45429 Attorney for Defendant-Appellant

FAIN, J.

{¶ 1} Defendant-appellant John Fuller appeals from his conviction and sentencefor one count of Felonious Assault, two counts each of Kidnapping and Aggravated Robbery, all with firearm specifications, and one count of Having Weapons Under Disability. Fuller claims that his convictions are against the manifest weight of the evidence and that they are not supported by sufficient evidence. He argues that he was denied his right to a speedy trial, and he maintains that his two Kidnapping convictions and one of his Aggravated Robbery convictions should have been merged because they are allied offenses of similar import.

{¶ 2} We conclude that Fuller's convictions are supported by sufficient evidence and that they are not against the manifest weight of the evidence. We conclude that Fuller was not denied his right to a speedy trial. We conclude that Fuller's Kidnapping convictions are not allied offenses of similar import, but his Kidnapping conviction under Count 2 of the indictment should have merged with his Aggravated Robbery conviction under Count 4. Consequently, that part of the judgment convicting Fuller of Kidnapping under Count 2 and Aggravated Robbery under Count 4 is Reversed; this cause is Remanded for merger of those two counts and re-sentencing accordingly; and the judgment is Affirmed in all other respects.

I. The Evidence

{¶ 3} The State presented the testimony of the victim, Andrew Sheets, Deputies Snyder and Walters, Detective Daugherty, and one of Fuller's co-defendants, Rayshawn Arnold. In order to explain how the police so quickly became involved in the investigation of the crimes against Sheets, the State also called to the stand Sheets's mother, his girlfriend, Jennifer Hopkins, and Hopkins's neighbor, Toylyn Blunt, who witnessed thecarjacking. The State's evidence is as follows:

{¶ 4} Late one afternoon in July, 2010, Fuller and Arnold discussed finding a drug dealer to rob. As the day progressed, the plan shifted to carjacking someone in Dayton and using the car to drive to Cincinnati to rob a convenience store. Armed with Fuller's revolver, the two men went to Fuller's brother's home, where they met up with Fuller's cousin, Arthur Jackson. Fuller and Arnold told Jackson of their plan, and late that evening the three men began roaming the streets looking for a victim.

{¶ 5} The men ran into Rick Burgan at a gas station and told him of their plan. Burgan suggested taking a car from the gas station, but the plan was rejected because of surveillance cameras. Still armed with Fuller's revolver, the four men headed into a nearby neighborhood, where they encountered Andrew Sheets getting into his black Land Rover.

{¶ 6} Sheets had just left the home of his girlfriend, Jennifer Hopkins, to head home. As he got into his car, he noticed several unknown males approaching him from the corner. Sheets heard footsteps quickly approaching and looked out his window to see a gun pointed at his head. Burgan forced Sheets at gunpoint into the back seat of the car and drove the Land Rover away with Fuller in the front seat, and Arnold, Jackson, and Sheets in the back.

{¶ 7} Hopkins's neighbor, Blunt, had heard banging outside and looked out her window. She saw a tall man bending toward the driver's window of a black Land Rover, banging on the car and demanding that the driver open the door. When the car door opened, she recognized a terrified-looking Sheets in the driver's seat. Blunt saw a second, somewhat shorter, man run by her house. She heard the first man order Sheets into the back seat beforegetting into the car and driving away. Blunt told her husband what she had seen. He called 911 and then drove off to look for Sheets's car, while Blunt waited in their home for the police to arrive.

{¶ 8} Sheets's abductors demanded money and drove to a nearby ATM, where Sheets was told to withdraw all of the money from his bank account. On the drive, Arnold and Jackson took Sheets's watch, wallet, and cell phone. Sheets withdrew $120, handed it to Burgan, and returned to the back seat as ordered.

{¶ 9} Fuller and his three co-defendants again discussed driving to Cincinnati to rob a convenience store, but Sheets's car did not have enough gas to make it that far. Burgan drove to a field, where Sheets remained with Arnold and Fuller, who forced him to remain face-down on the ground. Burgan and Jackson went to get gas. While in the field, Fuller took Sheets's driver's license from his wallet and told Sheets that they now knew who he was and where he lived, so they could come after him and his family if he reported the crimes to the police.

{¶ 10} When Burgan and Jackson returned to the field, Arnold blindfolded Sheets with a t-shirt. Sheets was then pushed into the back seat and told to keep his head down. Fuller drove the men to Cincinnati, where Arnold and Burgan robbed a United Dairy Farmers (UDF), taking among other things some Black and Mild cigars, which Fuller, Burgan, and Jackson smoked on the way back to Dayton. Arnold testified that Fuller kept the box of cigars on his lap in the driver's seat. During the drive, when Sheets asked questions of the men and tried to stretch his body, Jackson hit him with the gun on the side of the head, and Burgan punched him in the face.

{¶ 11} In the early morning hours, Arnold (and perhaps one of the other defendants) was dropped off before the other men returned Sheets to the area from which he had first been kidnapped. The men returned Sheets's watch and wallet and told him to wait for five minutes before leaving. After several minutes, Sheets removed the blindfold. After realizing that his keys were missing, along with a GPS and an iPod from his glovebox, Sheets ran more than three miles to his home.

{¶ 12} Due to the threats made while in the field, Sheets was reluctant to tell anyone what had happened. However, once home, he quickly learned that Blunt had witnessed the kidnapping and called the police, and his parents had also reported him missing. Thus, the police were already investigating the crimes.

{¶ 13} Because Sheets was blindfolded during most of the ordeal, and he was forced to keep his head down, he was not able to describe or identify his four captors beyond telling police that they were four tall, young men. The only one whose face he got a look at was Burgan, who first approached the Land Rover, pointing a gun at Sheets's head.

{¶ 14} Police investigation led to the discovery of Fuller's fingerprints on the glass and frame of the rear passenger door of Sheets's car. Fuller's right palm print was also found on a box of Black and Mild cigars found on the driver's floorboard of Sheets's car. From analyzing cell tower "ping" data obtained from Sheets's cell phone service provider, police traced Sheets's phone to within 400 yards of Fuller's home about half an hour after Sheets's ordeal had ended. Further Investigation revealed the identities of Burgan, Jackson, and Arnold. Detective Daugherty interviewed Fuller and his three co-defendants and obtained written statements from Arnold, Jackson, and Burgan.

II. Course of Proceedings

{¶ 15} Fuller was indicted on one count of Felonious Assault, two counts each of Kidnapping and Aggravated Robbery, all with firearm specifications, and one count of Having Weapons Under Disability. The case was tried to a jury. In addition to the evidence summarized above, the State introduced a certified copy of the judgment entry of Fuller's conviction for Assaulting a Police Officer, which was necessary to prove his conviction for Having Weapons Under Disability.

{¶ 16} By the time of Fuller's trial, both Jackson and Burgan had pled guilty to the charges against them in relation to the crimes committed against Sheets. Arnold was scheduled for a plea hearing the week after Fuller's trial, at which time Arnold intended to plead guilty to all charges.

{¶ 17} The only defense witness was Fuller, who testified that while he had been with Arnold, Jackson, and Burgan earlier in the day, they did not discuss a robbery. Fuller claimed that when the others left that evening, he stayed home with his mother, sister, and nieces. Between 11:30 p.m. and midnight that night, Burgan and Jackson returned to his house, driving a black SUV. When they pulled up, Burgan rolled down the back passenger window, and Fuller leaned into the rear window of the car to talk to Jackson and Burgan, who were in the front seats. Fuller then walked around to the driver's window and took a Black and Mild cigar from the box that Jackson handed to him. Burgan and Jackson invited Fuller to join them in committing a robbery. Fuller claimed that he declined the offer and returned to the house, where he remained with his mother, sister, and nieces.

{¶ 18} Fuller was found guilty of all charges and specifications. The trial court sentenced him to seventeen years in prison. From his conviction and sentence, Fuller appeals.

III. Fuller's Convictions Are Neither Against the Manifest Weight

of the Evidence Nor Unsupported by the Evidence

{¶ 19} Fuller's First Assignment of Error is as follows:

"THE APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶ 20} Fuller's Second Assignment of Error is as follows:

"THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE APPELLANT'S CONVICTIONS."

{¶ 21} In Fuller's...