State v. Vance

2018 Ohio 5409

STATE OF OHIO, Plaintiff-Appellee, v. LANCE J. VANCE, Defendant-Appellant.

Case No. 17 CO 0015

COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY

December 21, 2018

OPINION AND JUDGMENT ENTRY

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio

Case No. 2015 CR 88

BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT: Affirmed.

Atty. Robert Herron, Columbiana County Prosecutor and

Atty. Megan L. Bickerton, Assistant Prosecuting Attorney 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee

Atty. Timothy Young, Ohio Public Defender and

Atty. Allen Vender, Assistant State Public Defender, Office of the Ohio Public Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant.

WAITE, J.

{¶1} Appellant Lance J. Vance appeals a June 9, 2017 judgment entry convicting him of one count of aggravated robbery. Appellant argues that he received ineffective assistance of counsel in two instances: (1) his trial counsel failed to object to evidence of a prior bad act; and (2) his trial counsel failed to file a motion to suppress illegally seized tennis shoes. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} On June 28, 2014, a man entered Gilkinson's Short Stop ("Gilkinson's") in East Liverpool wearing a three-holed ski mask, dark clothing, a cloth belt, gloves, and white Nike shoes with distinctive markings. The man brandished a firearm and ordered the store owner to lie on the floor. The owner told the robber to "get the hell out" and pushed him out the door. (Trial Tr. Vol., pp. 217-218.) The would-be robber ran out of the store and down the street without further incident. The owner was unharmed and nothing was taken from the store. The owner could not identify the robber, however, a surveillance camera captured the incident.

{¶3} On September 2, 2014, Appellant and a man named Greg Cummings robbed a Marathon gas station in Conway, Pennsylvania. Conway is located in Beaver Township. During that robbery, Appellant wore a three-holed ski mask, dark clothing, a cloth belt, gloves, and held a gun in his right hand.

{¶4} The Gilkinson robbery was unsolved until December of 2014 when the Conway Police Department received a tip that a man named Greg Cummings was the getaway driver in the Marathon robbery. Cummings admitted to his role in the robbery and also implicated Appellant. Investigators asked Cummings about another robbery in Center Township, however, he had no knowledge of the incident. Investigators then asked him about the Gilkinson robbery and he implicated Appellant. According to Cummings, he recognized Appellant from a still frame photo of the robber in a local newspaper. He recognized Appellant due to his unique build (Appellant is 6'5" and approximately 180 pounds) and because he had frequently seen Appellant wearing the distinct shoes worn by the robber. Cummings told investigators that he asked Appellant about his involvement. Although Appellant initially denied involvement, he later admitted that it was him.

{¶5} At this time, Appellant lived in the basement of his mother's house. On December 13, 2014, the police obtained a search warrant for the house. As a result of the search, police seized a pair of white and black Nike shoes from the basement. The shoes are identical to the ones worn by the robber in the photo.

{¶6} On February 19, 2015, Appellant was indicted on one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1). A jury trial commenced on May 30, 2017. The jury found Appellant guilty of the sole offense. On June 9, 2017, the trial court sentenced Appellant to seven years of incarceration. The court ordered the sentence to run consecutively to his sentence from the Pennsylvania court. Appellant timely appeals.

Ineffective Assistance

{¶7} In Appellant's assignments of error he alleges that he received ineffective assistance of counsel for various reasons. The test for an ineffective assistance of counsel claim is two-part: whether trial counsel's performance was deficient and, if so, whether the deficiency resulted in prejudice. State v. White, 7th Dist. No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Lyons, 7th Dist. No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred. Id. at 693.

{¶8} As both are necessary, if one prong of the Strickland test is not met, an appellate court need not address the remaining prong. Id. at 697. The appellant bears the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed attorney is presumed competent. State v. Carter, 7th Dist. No. 2000-CO-32, 2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

ASSIGNMENT OF ERROR NO. 1

Lance Vance received ineffective assistance of counsel because his attorney failed to contemporaneously object to evidence of other acts that was introduced in violation of Evid.R. 404(B) and Evid.R. 403(A). Sixth and Fourteenth Amendments to the United States Constitution; Article I, Sections 1 and 10 of the Ohio Constitution; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); Evid.R. 404(B); Evid.R. 403(A); Tr. 267-68, 278, 314.

{¶9} Appellant argues that his trial counsel was ineffective for failing to object to evidence of a prior bad act, the Conway robbery. While Appellant concedes that his trial counsel filed a motion in limine regarding this evidence, counsel failed to renew his objection at trial. Appellant highlights the fact that the robberies were committed two months apart in different states. Appellant also argues that there are limited similarities between the robberies. Appellant argues that he suffered prejudice, as the evidence tended to convey to the jury that he is the type of person who commits robberies. Appellant also contends that there was little evidence to support his conviction for the Gilkinson robbery without evidence of the Conway robbery.

{¶10} In response, the state argues that the two robberies were committed in a similar fashion, in the same general locality, and within a close period of time. The state contends that the evidence shows modus operandi and identity based on the fact that the robber in both cases wore dark clothing, a cloth belt, a three holed ski mask, and gloves. The state notes that the robber held a gun in his right hand in both cases and demanded money from the cash register. Also, the state notes that both robberies targeted convenience stores in the late evening. The state urges that modus operandi evidence can be introduced even if there are some differences in the acts.

{¶11} Appellant concedes that he did not object to the introduction of the evidence at trial. Thus, he is limited to a plain error review on appeal. A three-part test is employed to determine whether plain error exists. State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 25, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

First, there must be an error, i.e. a deviation from a legal rule. Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.

Billman at ¶ 25.

{¶12} On the first day of trial, the trial court denied Appellant's motion in limine to suppress any evidence regarding the Conway robbery. The trial court explained that the Gilkinson and Conway robberies were similar in that the robber wore dark clothing, a cloth belt, a three-holed black ski mask, gloves, and held a gun in his right hand. Evidence involving the similarities, including the ski mask and the description of the robber, were deemed admissible. However, the trial court did exclude several pieces of evidence related to the Conway robbery; clothing that was specific to that event and evidence of drug use.

{¶13} Pursuant to Evid.R. 404(B):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

{¶14} "The admission of such [other-acts] evidence lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that created material prejudice." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.

{¶15} The Ohio Supreme Court created a three-step analysis when reviewing the admissibility of a prior bad:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be

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