09-0792appendix (attached): opinion and entry of first district court of appeals, march 20, 2009;...

E

IN THE SIIPREME COURT OF OHIO

STATE OF OHIO On Appeal from theCourt of Appeals,First Appellate District,Hamilton County, Ohio

09-0792

Plaintiff-Appellee

vs.

JIMMY P. CANYON, JR

Defendant-Appellant.

Court of AppealsCase No. C-070729

C-070730C-070731

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT JIMMY P. CANYON, JR.

HAL R. ARENSTEIN (0009999)Arenstein & Gallagher114 East 8th StreetCincinnati, Ohio 45202(513) 651-5666Fax. No. (513) 651-5688

COUNSEL FOR APPELLANT, JIMMY P. CANYON, JR.

JOSEPH T. DETERS (0012084P)Hamilton County ProsecutorPhilip R. CummingsAssistant Prosecuting Attorney230 E. 9th Street, Suite 400Cincinnati, Ohio 45202Telephone (513) 964-3000Fax. No. (513) 946-3021

COUNSEL FOR APPELLEE, STATE OF OAIOAPR 3 0 2ao9

CLERK OF COUR7SUPREME COUR7 OF OHIO

TABLE OF CONTENTS

IN ADDITION TO INVOLVING A FELONY, WHY THIS CASE IS OF PUBLIC OR GREATGENERAL INTEREST, INVOLVES A SUBSTANTIAL CONSTITITIONAL QUESTION,AND WHY LEAVE TO APPEAL SHOULD BE GRANTED . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Procedural Posture .............................................................1

Statement of Facts ..............................................................2

PROPOSTITION OF LAW NO. l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TIIE FIRST APPELLATE DISTRICT ERRED BY NOT FINDING COUNTS ONE AND TWOOF THE INDICTMENT DEFECTIVE BECAUSE THEY FAILED TO STATE THE MENSREA THE PROSECUTION WAS REQUIRED TO PROVE.

Authorities:State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 169 . . . . . . . . . . . . . . . . . . . . . 5

PROPOSITION OF LAW NO. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THETRIAL COURT'S FAILURE TO EXCUSE TWO JURORS WHO APPEARED SHAKY, FELTUNCOMFORTABLE AND CONCERNED AFTER BEING APPROACHED BY A WITNESSAND ANOTHER INDIVIDUAL AS TIiEY LEFT THE COURTHOUSE WAS ERROR.

Authorities:State v. Taylor, 73 O. App 3d 827; 598 N. E. 2d 818 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6State v. Hopfer 112 O. App 3d 521; 679 N. E. 2d 321 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Dayton v. Gigandet, 83 O. App 3d 886; 615 N. E. 2d 1131 (1992) . . . . . . . . . . . . . . . . . 6State v. Smith, 74 O. S. 3d 72, 656 N. E. 2d 643 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PROPOSITION OF LAW NO. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DID NOT REVERSE THETRIAL COURT FOR REFUSING TO GRANT TRIAL COUNSEL'S REQUEST FOR AMISTRIAL WHEN THE ABILITY OF TWO JURORS TO REMAIN FAIR AND IMPARTIALWAS COMPROMISED.

Authorities:State v. Scott, 26 O. S. 3d 92 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PROPOSITION OF LAW NO. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8

THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DID NOT FIND TRIALCOUNSEL INEFFECTIVE IN HIS REPRESENTATION OF APPELLANT.

Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Trial counsel failed to file a motion to suppress the identification of Mr. Canyon prior to trial.

Authorities:Strickland v. Washington, 466 U. S. 667 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9United States v. Cronic 466 U. S. 648 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Foster v. California, 394 U. S. 440 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Neil v.Biggers, 409 U. S. 188 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Trial counsel should have asked for an expert at state's expense to testify about eyewitnesstestimony

Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Trial counsel failed to object to the adniission of hearsay evidence

Issue Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Trial counsel failed to request an in camera inspection of any and all witness statements

PROPOSITION OF LAW NO.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DID NOT FIND THETRIAL COURT ERRED BY SENTENCING APPELLANT TO CONSECUTIVE SENTENCESON COUNTS ONE AND THREE.

Authorities:State v. Cabrales, 114 Ohio St.3d 1408, 2007-Ohio-2632, 867 N.E.2d 842 . . . . . . . . . . . . . . . . .13

PROPOSITION OF LAW NO.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN TFIE FINDINGS OF GUILT AS TOALL COUNTS.

PROPOSITION OF LAW NO.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

THE FINDINGS OF GUILT AS TO ALL COUNTS WERE AGAINST THE MANIFESTWEIGHT OF THE EVIDENCE.

Conclusion ..................................................................15

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Appendix (attached): Opinion and Entry of First District Court of Appeals, March 20, 2009;Trial Court 7udgment Entry B0305078-B, B0508366 and B0701463

iii

iN ADDITION TO INVOLVING A FELONY, WHY THIS CASE IS OF PUBLIC ORGREAT GENERAL INTEREST, INVOLVES A SUBSTANTIAL CONSTITIITIONALQUESTION, AND WI3Y LEAVE TO APPEAL SHOULD BE GRANTED.

A defendant has a constitutional right to present a defense.' In this case the First District

Court of Appeals denied that right. According to the appellate court if on appeal a defendant

claims the indictment was defective because it failed to state a mens rea, the defendant waives

structural analysis of the error if the defense was anything other than that he did not have the

appropriate mens rea to have committed the crime(s). Such a brave proclamation alters this

Court's holding in State v. Colonz and denies the defendant his constitutional right to present a

defense.

In addition, this case raises several more constitutional issues. The issues are as follows:

the appellate court erred by failing to reverse the trial court's decisions not to excuse two jurors

after they were approached by a witness and another individual as they left the courthouse and

refixsing to grant a mistrial because the ability of the two jurors to remain fair and impartial was

compromised; Mr. Canyon was denied his constitutional right to the effective assistance of

counsel; the First District Court of Appeals erred when it did not find the trial court's

consecutive sentences on counts one and three to be improper; and there was insufficient

evidence and the jury's verdict was against the great weight of the evidence for Mr. Canyon's

conviction to stand.

Finally, this Court has an opportunity to clarify the proper analysis under Colon I and

Colon II which has affected a great number of cases. The resolution of these issues is a question

of great public interest.

PROCEDURALPOSTURE

'Holmes v. South Carolina, 547 U.S. 319 (2006),2 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917.

1

On February 28, 2007 Mr. Canyon, hereinafter referred to as Appellant, was indicted by a

Hamilton County Grand Jury for events alleged to have occurred on October 23, 2006. The

indictment charged Appellant with Aggravated Robbery with a gun specification, in violation of

ORC § 2911.01(A)(1); Aggravated Robbery, in violation of ORC § 291 1.01(A)(3), and included

a gun specification; Felonious Assault with a gun specification, in violation of ORC §

2903.11(A)(1); Felonious Assault, a violation ORC § 2903.11(A)(2), with a gun specification;

and Having A Weapon While Under Disability, in violation of ORC § 2923.13(A)(2).

A jury trial commenced on September 10, 2007 and four days later a verdict of guilty was

returned on all five counts. On October 4, 2007 Appellant was sentenced as follows: Count one:

(8) years in the Ohio State Penitentiary, plus (3) years on the gun specification for a total of (11)

years; Count two: (8) years in the Ohio State Penitentiary, plus (3) years on the gun specification

of a total of (11) years, the sentence to run concurrent with Count one, all gun specifications

merged into one sentence of (3) consecutive years; Count three: (7) years in the Ohio State

Penitentiary, plus (3) years on the gun specification, sentence to run consecutive to Counts one

and two; Count four: (7) years in the Ohio State Penitentiary, plus (3) years on the gun

specification, sentence to run concurrent with Count three, but consecutive to Counts one and

two; and finally Count five: (4) years in the Ohio State Penitentiary consecutive to counts one,

two, three and four. The total sentence came to (22) years in the Ohio State Penitentiary.

Appellant received (5) more years for violating his probation in B-0305078-B and B-0508366,

The cases were consolidated for the purposes of appeal. The First District affirmed the

trial court decisions. See Appendix, March 20, 2009, Opinion and Judgment Entry of First

District Court of Appeals, attached.

STATEMENT OF TI3E FACTS

2

On October 23, 2006 John Davis and several friends planned to purchase and sell a

quarter pound of marijuana.3 Unfortunately, Davis had no connections available to provide the

product. He telephoned an individual known by reputation as "Tone-Bud" to obtain the

marijuana.' Tone-Bud, whose name is Anthony Nelson testified he received a call from a

stranger. This person wanted to obtain a quarter pound of marijuana.5

Tone-Bud declined the request and handed his cell phone to Appellant 6 Beyond this

information, Nelson had no personal knowledge of the allegations against Appellant. During his

testimony, without objection, Nelson said Appellant was a drug dealer.7

Davis testified he had dealt drugs for four years.8 Brandon Denny did the same.9 Denny

testified he never spoke to Tone-Bud on the phone.10 Two other individuals accompanied Davis

and Denny to the drug deal. It appears Denny and Davis was "middling" the purchase of

marijuana for Anthony Hoover.11 Hoover intended to resell it.lz

Davis testified they drove to residential area in Woodlawn to make the purchase. When

they arrived Davis felt uncomfortable with the location.13 The area was not well lit.14 A

different spot was selected.15

Shortly after they arrived Davis saw a man walking up the street.'6 He got into the car on

the passenger side in the back seat." The man identified himself as Tone-Bud.'s Davis asked

'T.R. p. 274."T.R. p.273.5 T.R. p. 367.6 T.R. p. 368.' T.R. p. 370.$T.Rp.312.9 T.R. p. 550.lo T.R. p. 553." T.R. p. 569.1Z T.R. p. 597.'3 T.R. p. 283.14 T.R. p. 282.s T.R p. 283.

16 T.R p. 284.

3

for marijuana and Tone-Bud asked for the money." Davis testified the man pulled out a gun and

shot him in the groin.20 The shooter asked for the money again. Someone in the front seat

handed it back and the man left?t The driver, Anthony Hoover, threw the car into reverse and

tried to run the shooter over.22 He ran into a stop sign.'3 At that moment another car sped past

which Hoover believed was involved.'``

As he chased the car it had mechanical problems, crashed and was abandoned.25 Hoover,

Hill, Denny and Davis left.26 Hoover testified Davis did not want to go to the hospital so he took

him home.27 Hoover had no intention of reporting this to the police.28 When Davis went to the

hospital the police were called.

Some days later Det. Chris Pitsch of the Woodlawn Police Department showed Hoover

some photos. He did not make an identification. He testified Pitsch told him they thought they

found the guy and he needed him to look at another lineup.29 On cross-examination, Hoover

testified Pitsch told him the guy "was on the paper" and "he wanted me to take a look at it.s3o

Hoover never provided the police with a description of the person who shot Davis.31

" T.R. p. 2851s T.R. p. 287.19 T.R. p. 288.20 T.R. pp. 288-290.21 T.R. p. 293.22 T.R. p. 581." T.R. p. 581.24 T.R. p. 587.25 T.R. p. 541.zb T.R. p. 608.Z7 T.R. p. 590.2'T.R. p. 594.29 T.R. p. 594.3o T.R. p. 611.

T.R. p. 612.

4

Denny was shown photographs two months after the incident in the prosecutor's office.3z

He was asked by Pitsch to identify the "right" person.33 Denny was never asked to put his

initials by the photograph.34

Davis was shown a series of photos at his home.35 He had an "opinion" about one photo,

but was not sure.36 Pitsch came back later with more photos and told him to pick out the

"shooter."37 Davis picked Appellant's photo.

After the first day of testimony several jurors were approached as they left the courthouse

by a state's witness and friend of Appeliant 38 Upon revealing this improper communication

7uror Silverman was noticeably shaking.39 Juror Knight testified he felt uncomfortable and

concerned.'° Despite defense counsel's request, a mistrial was not granted. The court refused to

excuse Knight for cause concerned the rest of the jury would read more into it 4t

PROPOSITION OF LAW NO.1

THE FIRST APPELLATE DISTRICT ERRED BY NOT FINDING COUNTS ONE ANDTWO OF THE INDICTMENT DEFECTIVE BECAUSE THEY FAILED TO STATETHE MENS REA THE PROSECUTION WAS REQUIRED TO PROVE.

This Court ruled when a criminal indictment fails to state a mens rea or guilty state of

mind the state must prove to secure a conviction for a charged offense, and the defendant fails to

object to the defect in the trial court, he has not waived the defect and may raise it for the first

time on appeal.42 The facts in Colon are similar to this case. There, the Court noted an essential

32 T.R. p. 544.33 T.R. p. 544.34 T. R. p. 560.3s T.R. p. 307.16 T.R. p. 307.37 T.R. p. 309.3s T.R. p. 408.39 T.R p. 438.40 T.R. p. 420.41 T.R. p. 474.42 State v. Colon, 118 Ohio St.3d 26, 2008-O1rio-1624, 885 N.E.2d 169.

5

element of the robbery charge was the mental state of "recklessness" in inflicting or attempting

to inflict physical harm on someone during a theft. Neither the indictment nor the instructions to

the jury by the court cured this error. This was held to be a structural error with constitutional

underpinnings because it affects the framework within which a trial proceeds. The Chief Justice

noted ". .. such errors permeate the entire conduct of the trial from the beginning to end so that

the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence."

Appellant's indictment failed to state a culpable mental state and the instructions to the

jury neglected to include a definition of recklessness. This case falls squarely under the ruling in

Colon and should result in a reversal of counts one and two.


TRE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT FAILED TO FINDTHE TRIAL COURT'S FAILURE TO EXCUSE TWO JURORS WHO APPEAREDSHAKY, FELT UNCOMFORTABLE AND CONCERNED AFTER BEINGAPPROACHED BY A WITNESS AND ANOTHER INDIVIDUAL AS THEY LEFT THECOURTHOUSE WAS ERROR

It is paramount a juror consider evidence fairly and impartially in determining the guilt or

innocence of accused individual before all of the evidence is presented.43 In State v. Hopfer,4'

the Court refined the test to state, "the test for a prospective juror is not whether he has escaped

normal influences or has no views on a universal question, the test is whether his views will

impair his judgment to the extent he would not be able to faithfully and impartially determine the

facts and apply the law according to the instructions of the court.i45

When there is juror communication with witnesses the trial court must tread carefully.a6

When there has been an improper communication between a juror and a witness, the court must

43 See, State v. 'L'aylor, 73 O. App 3d 827; 598 N. E. 2d 818 (1991).44 112 0. App 3d 521; 679 N. E. 2d 321 (1996).41 See also, Dayton v. Gigandet, 83 O. App 3d 886, 891-92; 615 N. E. 2d 1131 (1992).46 State v. Smith, 74 O. S. 3d 72, 656 N. E. 2d 643 (1995).

6

hold a hearing to determine if the juror is prejudiced. Any communication between a juror and a

witness is presumed prejudicial.47 The burden is upon the state to establish harmless contact 41

Trial courts are granted broad discretion in dealing with contacts and determining whether to

declare a mistrial or replace the affected juror.49

After the first fiull day of testimony, as the jurors left the Hamilton County Courthouse

they were accosted by two men. One male tried to pull one of the jurors aside.50 This was seen

by other jurors, some of whom discussed the incident in the jury room with others who were

unaware of it. This was reported to the court's bailiff.sr

The trial court conducted a voir dire of the jury_ Two jurors, Silverman and Knight,

expressed concerns audibly and in their body language. Silverman was visibly shaking as he

related the incident.52 While he said he could be fair and impartial; his physical behavior belied

this comment.

Knight expressed definite concerns and felt unconifortable.53 He was worried his blood

pressure had risen as a result of this incident. The trial court refused to excuse him because it did

not want to taint the entire jury. Counsel moved for a mistrial based upon the fears of both

jurors.54 The state never showed these jurors were not prejudiced. Yet, the trial court overruled

his request.55

Here, trial counsel's argument becomes convoluted. While he believed both jurors had

been tainted, he was concerned excusing would send a mixed message to the remaining jurors.

"' Id."8 Id.491d Citing United Slates v. Daniels, (C.A. 6, 1976), 528 F. 3d 705, 709-710.so T.R. p. 442.s' T.R. p. 408.52 T.R. p. 438.s3 T.R. p.420.54 T.R. p. 467.^ T.R. p. 472.

7

The court agreed and determined excusing W. Knight would cause the rest of the jury to read

more into this than necessary.56 Counsel was placed in a no win situation. The only way to

remove the taint was to grant the mistrial.


THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DID NOT REVERSETHE TRIAL COURT FOR REFUSING TO GRANT TRIAL COUNSEL'S REQUESTFOR A MISTRIAL WHEN THE ABILITY OF TWO JURORS TO REMAIN FAIR ANDIMPARTIAL WAS COMPROMISED.

The granting of a motion for mistrial is a matter ofjudicial discretion.s' Only by showing

of an abuse of discretion will such a denial be reversed. Counsel has already addressed these

facts in the previous assignment.


THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DID NOT FIND

TRIAL COUNSEL INEFFECTIVE IN HIS REPRESENTATION OF APPELLANT.

Issue Presented for Review

Trial counsel failed to file a motion to suppress the identification of Mr. Canyon prior to trial.

The sole evidence against Appellant was eyewitness testimony. The legal system has

always relied upon eyewitnesses, nowhere more than in criminal cases. Although the evidence

of these kinds of witnesses can be tremendously helpful in developing leads, identifying

criminals and exonerating the innocent, this evidence is not infallible. Honest and well

intentioned witnesses can make errors, such as identifying the wrong person or failing to identify

the real perpetrator of a crime.

During the past 20 years, research psychologists have produced a substantial body of

findings regarding eyewitness evidence. This has led to the creation of guidelines on a national

ss T.R. p. 474.State v. Scott, 26 O. S. 3d 92 (1986).

8

and local level to prevent misidentification of suspects. The desire is to increase the accuracy

and reliability of eyewitness evidence. Adherence to certain procedures decreases the number of

wrongful identifications and helps to ensure reliable eyewitness evidence is given the weight it

deserves in legal proceedings.

In the landmark decision of Sirickdand v. Washingion,58 the Supreme Court held to

establish a claim of ineffective assistance of counsel, Appellant must show counsel made such

serious errors he was not functioning as the "counsel" guaranteed by the Sixth Amendment, and

counsel's deficient performance prejudiced the defense by undermining the trial. Under the first

prong of the Strickland test, Appellant must demonstrate his counsel's performance fell below an

objective standard of reasonableness based upon all of the circumstances surrounding the case. 59

Judicial scrutiny must be deferential and a "fair assessment of attoruey performance requires that

every effort be made to eliminate the distorting effects of hindsight" and to evaluate the

challenged conduct from counsel's perspective at the time of the conduct.

To satisfy the second prong, Appellant must show a "reasonable probability" exists, but

for counsel's errors, the result of the trial would have been different 60 A showing Appellant

counsel's errors had "some conceivable" effect on the outcome of the proceeding is sufficient to

meet this standard.

In United States v. Cronic,61 decided the same day as Strickland, the Court held in any

claim of ineffective assistance of counsel, there must be an inquiry into counsel's actual

performance at trial unless the circumstances are such no lawyer could have provided effective

assistance. Here, identity was the issue. Counsel should have moved to suppress the in-court

58 466 U. S. 667 (1984),59 See Id at 688.60 See id at 694.61 466 U. S. 648 (1984).

9

identification testimony as tainted by out of court error.62 Only in this way could counsel ensure

the identification process followed by the State was not flawed.

Since counsel did not he was unable to determine the circumstances under which the

identifications were made. Both the Hamilton County Sheriff and the Cincinnati Police

Department have established standard operating procedures to comply with these concerns.

Counsel is unaware of the Woodlawn Police Department policy.

The recommended practice is to have an officer not involved in the case prepare the six-

pack for viewing by witnesses. This double blind approach ensures the officer conducting the

photographic viewing has no stake in the outcome of the case and will not inadvertently provide

cues to the witness. A description of the alleged perpetrator should be repeated as recalled.

Then, a`witness preparation' form should be read to the witness. This form tells the

witness the group of photographs may or may not contain a photo of the person who committed

the crime. Second, regardless of whether or not the identification is made, the police will

continue to investigate this incident. Third, it is just as important to clear innocent individuals

from suspicion as it is to identify the guilty. Fourth, keep in mind individuals may change

hairstyles, beards, moustaches, etc. Fifth, photographs may not always depict the true

complexion of a person. It may appear lighter or darker in the photograph. Sixth, view all

photographs and take as much time as you need. Seventh, please indicate in your own words

how certain you are of the identification. And eighth, do not tell the other witnesses you have

identified someone.63

bZ Poster v. California, 394 U. S. 440 (1969) and Neil v.Biggers, 409 U. S. 188 (1972).63 (FORM 607A CPD).

10

No cues or statements before the showing of the photos should indicate the suspect is in

the six-pack about to be shown or the suspect is in custody. If identification occurs no statement

should be made suggesting the right person was selected.

In creating the photo lineup six pictures shown one at a time should be used. Polaroid

and mugmaster photographs should not be mixed. Persons in the array should have a description

similar to the suspect's and be attired in clothing comparable to that wortt in the suspect's

picture. If using a mugmaster system, the officer should avoid using photos showing an

individual's height or custodial status. The investigator is required to document on the back the

date, time and location when the array is shown. If the witness makes the identification, he or

she should initial either to front or back of the photograph indicating which picture he picked

OUt.64

Without a Motion to Suppress it is impossible to know if the procedures were followed.

In fact, it is clear many of them were not. All three of the state's witnesses were tainted. Hoover

was told by Pitsch the guy "was on the paper" and "he wanted me to take a look at it." Hoover

he never gave a description of the shooter to police.

Davis was shown a series of photos at his home. He had an "opinion" about one photo

but was not sure. A week later Pitsch retumed with more photos and told him to pick out the

shooter. This obviously implied Pitsch believed the shooter was in the array.

Denny was shown photographs almost two and half months after the incident at the

prosecutor's office by Pitsch. He was asked by Pitsch to identify the "right" person. Denny

picked out Appellant's photo but did not initial the photo.

69 See Eyewitness Identification: A Guide for Law Enforceinent, United States Department of Justice and CincinnatiPolice Depaztment Investigations Manual § 8.1.0 Lineups.

11

These are just a few of the errors the trial testimony in this case disclosed. Had a hearing

been held much more could have been learned to determine is the identification process was

flawed. The single most dangerous kind of evidence is eyewitness identification. Where

physical evidence may be analyzed, eyewitness testimony cannot.

Eyewitness evidence is often viewed as a critical piece in the investigative puzzle, the

utility of which can be further enhanced by the pursuit of other corroborative evidence.

Sometimes, even after a thorough investigation, eyewitness identification is the sole piece of

evidence.


Trial counsel should have asked for an expert at state's expense to testify about evewitness

testimonv

The case law in this district is clear. Expert's at state expense are available.


Trial counsel failed to objoct to the admission of hearsay evidence

During the trial, there were numerous occasions in which the prosecutor elicited hearsay

answers from his witnesses without objection. The state called Officer Kevin Marcum. Without

objection he testified he detained the two young men who drove a car past Davis, Hoover and

Denny after the shooting. He offered the statements made by these two young men, much of

which was harmfal to Appellant.6s


Trial counsel failed to object to the admission of bad acts evidence elicited by the prosecutor

65 T.R. pp. 511-516.

12

During the testimony of Tone-Bud, the prosecutor asked if Appellant was in the business

of selling drugs_66 Without objection Nelson answered, "I mean, he did like, you know." Later

he said Appellant worked with him in his drug business.

Evidence Rule 404 (B), other crimes, wrongs or acts states evidence of other crimes,

wrong, 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. The prosecutor was not eliciting the testimony to comply with the rule. He smeared

Appellant alleging him to be a drug dealer.


Trial counsel failed to request an in camera inspection of any and all witness statements

Criminal Rule of Procedure 16 (B)(l)(g) allows for in camera inspection of all witness

statements once the direct examination has been completed. This includes grand jury testimony

upon a showing of likely inconsistency. In the matter at bar, it does not appear trial counsel

requested a review. In an eyewitness case prior descriptions are important. When compared to

the improper identification procedure it is beyond doubt counsel should have made this request.

Counsel did not function as contemplated by the Sixth Amendment.


THE FIRST DISTRICT COURT OF APPEALS ERRED WHEN IT DII1 NOT FIND THETRIAL COURT ERRED BY SENTENCING APPELLANT TO CONSECUTIVESENTENCES ON COUNTS ONE AND THREE.

Recently, the Ohio Supreme Court made a significant change in sentencing. In State v.

Cabrales,67 the Court held in order to have allied offenses of similar import, the elements no

66 T.R. p. 370.67 114 Ohio St.3d 1408, 2007-Ohio-2632, 867 N.E.2d 842

13

longer had to coincide exactly. The proper test is do the elements correspond to a degree that

committing one crime results in committing the other. In an indictment alleging an aggravated

robbery in which someone was injured as a result of the taking, a felonious assault will

necessarily occur. If there is a serious injury caused by a weapon, a felonious assault will occur.

A comparison of the statutory elements in the abstract, produces a clear application here.


THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE FINDINGS OF GUILTAS TO ALL COUNTS.

In the matter at bar, there was insufficient evidence upon which a finding of guilt could

be made by the jury. A jury verdict will not be disturbed unless, after viewing the evidence in a

light most favorable to the state, it is apparent reasonable minds could not reach the conclusion

of the trier of fact 68


THE FINDINGS OF GUILT AS TO ALL COUNTS WERE AGAINST THE MANIITSTWEIGHT OF THE EVIDENCE.

A manifest weight of the evidence argument is evaluated under a different standard. In

order for this court to reverse the judgment of the jury on this basis, this court must disagree with

the jury's resolution of conflicting evidence and testimony.

This case was based only on eyewitness testimony. No physical evidence was presented.

As pointed out, eyewitness testimony has been shown to be unreliable. With a flawed

identification process, this argument is more compelling.

68 State v. 'I'reesh, 90 O. S. 3d 460 (2001).

14

CONCLUSION

For all of the reasons argued Appellant requests discharge or reversal of his convictions

and a new trial and if reversal or discharge is inappropriate, the sentences in counts one and three

should run concurrently.

R. ARENSTEIN (0009999)Arenstein & Gallagher114 East Eighth StreetCincinnati, Ohio 45202(513) 651-5666

CERTIFICATION

I hereby certify that a copy of the foregoing was served upon the Hamilton County

Prosecutor thisc2q day of April, 2009.

15

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NOS. C-o7o729

Plaintiff-Appellee,

vs.

JIMMY P. CANYON, JR.,

Defendant-Appellant.

C-o7o730C-o7o73i

TRIAL NOS. B-0508366B-o3o5o78-BB-o7oi463

DECISION.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: March 20, 2009

Joseph T. Deters, Hamilton County Prosecutor, and Philip R. Cummings, AssistantProsecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Hal R. Arenstein, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

SuxDExrrAivx, Judge.

{¶1} Jimmy Canyon appeals his convictions for aggravated robbery with a

specification, felonious assault with a specification, and having a weapon while under

a disability. He also appeals the trial court's judgment that revoked his community

control for two prior convictions and imposed prison terms. We conclude that

Canyon's assignments of error do not have merit, so we affirm the judgments of the

trial court.

Background

{12} Canyon was indicted for two counts of aggravated robbery with a gun

specification, two counts of felonious assault with a specification, and one count of

having a weapon while under a disability. The case was tried before a jury.

(113} During the trial, the state alleged that Anthony Hoover had contacted

Brandon Denny to obtain some marijuana. According to the state, Denny's friend

John Davis had the phone number of a potential seller nicknamed Tone Bud. At the

trial, Tone Bud was identified as Anthony Nelson. When Davis called Nelson seeking

marijuana, Nelson informed him that he had none. Another man then got on

Nelson's phone and told Davis that he had marijuana to sell:

{1[4} The man agreed to sell marijuana to Davis for $4oo. Davis, Denny,

Hoover, and Chris Hill drove together in Hoover's Cadillac to meet the man. When

they had arrived at the meeting place, a man approached the car. According to Davis

and Denny, the man got into the back seat of the car, confirmed that Davis wanted a

quarter pound of marijuana, reached into his pocket, pulled a gun out, and shot

Davis in the groin. Davis testified that the man then demanded money, asking,

"[Y]ou want your boy to take another one?" According to Denny, Hill gave the man

$40o, and the man exited from the car. Hoover, who had been driving the car,

2

OHIO FIRST DISTRICT COURT OF APPEAIS

attempted to hit the man with his car and then pursued the car from which the man

had come. After the occupants of that car fled into the woods, the pursuit ended, and

Hoover took Davis home.

{¶5} Officer Kevin Marcum testified that he arrived at the place where the

car had been abandoned, and that Isiah Bealer, Justin Nixon, and Darius Lemon had

emerged from the woods nearby when he had approached the car. According to

Officer Marcum, Bealer stated that he had been the driver of the car, and that the car

had been chased by a white Cadillac.

{¶6} Davis's parents took him to a hospital for treatment. The hospital

personnel notified the police that there had been a shooting. Detective Christopher

Pitsch responded to the hospital to investigate. In the course of the investigation,

Officer Marcum contacted Detective Pitsch about the car that had been driven by

Bealer. The police officers suspected that the car chase and the shooting were

related. Eventually, Detective Pitsch traced Davis's phone call to Nelson's phone.

When questioned, Nelson told Detective Pitsch that Jimmy Canyon had used his

phone. Nelson also told police that Canyon went by the nickname J-Killa. Nelson

later identified Canyon in a photographic array. Detective Pitsch testified that Bealer

had told him that a person named Jimmy, or J-KiIla, had been in his car the night

that it had been chased. Later, Denny, Hoover, and Davis identified Canyon as the

man who had entered Hoover's car and had shot Davis.

(¶7) At the conclusion of the trial, the jury found Canyon guilty as charged.

The trial court sentenced Canyon to eight years' incarceration for each of the

aggravated-robbery counts, to seven years for each of the felonious-assault counts,

and to four years for having a weapon while under a disability. The sentences for

aggravated robbery were concurrent but were otherwise consecutive to the other

3


sentences, as were the sentences for felonious assault. Additionally, the trial court

sentenced Canyon to a three-year term for the merged gun specifications. The

aggregate prison term was 22 years.

{18} Canyon had been previously convicted of robbery in the case

numbered B-o3o5o78B and assault in the case numbered B-o5o8366, and the trial

court had imposed community control for those convictions. As a result of his new

convictions, the trial court revoked his community control and imposed prison

sentences of four years and one year, respectively, and made these sentences

consecutive to the sentences it had already imposed. This appeal followed.

The Indictment

{1[9} In his first assignment of error, Canyon asserts that the trial court

erred when it convicted him of two counts of aggravated robbery because the

indictment for those counts failed to state the mens rea that the state had to prove.

{¶10} In State v. Colon (Colon 1), the Ohio Supreme Court held that an

indictment that failed to state the mens rea for robbery was structurally defective,

and that the defendant had not waived the error by faifing to raise the issue at trial.l

The court later clarified that the situation in Colon I was unique, and that structural-

error analysis applies only to those rare cases "in which multiple errors at the trial

follow the defective indictment."2 "Seldom will a defective indictment have this

effect, and therefore, in most defective indictment cases, the court may analyze the

error pursuant to Crim.R. 52(B) plain-error analysis."3 The difference is important.

Structural errors are, by definition, prejudicial and must result in a new trial.4 Under

1 118 Ohio St.3d 26, 2oo8-Ohio-1624, 885 N.E.2d 917, syllabus.2 State v. Colon (Colon 11), 119 Ohio St.3d 204, 2oo8-Oluo-3749, 885 N.E.2d 917, 18.3 Id.4 State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, at T9.

4

OHIO FIRST DISTRICT COiJRT OF APPEALS

a plain-error analysis, an error can be determined to be inconsequential by a

reviewing court.

{¶11} Before determining whether we should review the indictment in this

case for structural or plain error, we consider the state's argument that the

aggravated-robbery count in violation of R.C. 2911.oz(A)(i) was not defective.

According to the state, the offense is a strict-liability offense. But in State v. Lester,

this court concluded that the failure to state the mens rea for aggravated robbery was

defective.5 We decline to overrule this holding. Both aggravated-robbery offenses

under R.C. 291i.oi(A)(i) and 2911.0i(A)(3) required that the state prove a mens rea.

And an indictment that fails to state the mens rea for those offenses is defective.

(1[12} Having concluded that the indictment in this case was defective. We

must determine whether we should proceed with a structural- or a plain-error

analysis. We conclude that a plain-error analysis applies here. Unlike in Colon I, the

defective indictment in this case did not permeate the proceedings. Canyon's

defense was not that he did not have the appropriate mens rea to have committed the

crimes. Rather, he denied that he was involved at all in the shooting.

{¶13} Under this analysis, we can conclude that there was plain error only if

the outcome of the trial would have been different, but for the error. We cannot so

conclude. The trial testimony made clear that the person who committed the

offenses had acted knowingly. There was no question about the shooter's mens rea.

Rather, at issue was the identity of the shooter. We conclude that the defect in the

indictment was not outcome-determinative. The first assignment of error is

overruled.

51bt Dist. No. C-o7o383, 2oo8-Ohio-3570•

5

OHIO FIRST DISTRICT COURT OF APPE?II..S

Jury Issues

[1114} Because they are related, we consider Canyon's second and third

assignment of errors together. In the second, he asserts that the trial court erred

when it failed to excuse jurors who had been approached by a witness outside the

courtroom. And in the third, he asserts that the trial court erred when it denied his

request for a mistrial when the two jurors' ability to remain fair and impartial had

been compromised.

{115} Before the second day of the trial began, jurors seven and eight

informed the trial court's bailiff that they had been approached by one of the

witnesses. The trial court conducted a voir dire of the entire jury and questioned

Justin Nixon, the witness who had approached the jurors. The jurors stated that

they could remain fair and impartial, despite Nixon's attempted communication.

And Nixon told the court that he had been merely trying to ask the jurors if the trial

was over for the day. After conducting the voir dire of the jury and questioning

Nixon, the trial court denied Canyon's motion to dismiss jurors seven and eight and

denied his request to declare a mistrial based on the incident.

(1[16} The burden was on Canyon to establish that any attempted

communication between Nixon and the jurors had biased the jurors.6 Canyon failed

to establish any bias. Further, the trial court had broad discretion to deal with

outside communication and to determine whether to declare a mistrial or to replace

a juror.7 We conclude that the trial court did not abuse its discretion here. The

second and third assignments of error are overruled.

6 State v. Phillips, 74 Ohio St.3d 72, 88, 1995-Ohio-171, 656 N.E.2d 643.7 Id. at 89.

6


Prosecutorial Misconduct

{117} Canyon's fourth assignment of error is that he was deprived of a fair

trial due to prosecutorial niisconduct. Specifically, he argues that the prosecutor

repeatedly asked leading questions. We must determine whether the prosecutor's

questions were improper, and if so, whether they affected a substantial right of

Canyon's.8

{118} During the trial, Canyon objected to only two of the many questions

that he now claims were leading questions. One of his objections was sustained.

During the direct examination of Justin Nixon, the prosecutor asked, "Last October

the 23'd, did you have occasion to be riding around in a tan Cougar car that Isiah

Bealer was driving?" Nixon responded, "Last what?" The prosecutor replied,

"October 23Td, the night you end up getting chased by some people." Defense

counsel's objection was sustained, and the prosecutor did not ask the leading

question again. We conclude that that question did not affect a substantial right.

{¶19} Canyon's counsel also objected when the prosecutor asked Isiah

Bealer, "Do you remember telling [Detective Pilsch] that a person named Jimmy was

in your car?" According to the prosecutor, he had asked a leading question so that he

could impeach Bealer with his prior statement. The trial court allowed the question.

We conclude that this was not an abuse of discretion.9 And the prosecutor's question

was not improper.

{1[20} Canyon did not object to the other questions. Thus, he has waived all

but plain error.10 Having reviewed the record, we conclude that the prosecutor

resorted to leading questions to move the trial along, not to influence his witnesses'

$ State v. Smith (1984), 14 Ohio St.3d 13,14-15, 47o N.E.2d 883.9 See State v. Meyers, 2d Dist. No. 20o6 CA 2, 2oo6-Ohio-6125.1O State v. Hanna, 95 Ohio St.3d 285, 2oo2-Ohio-2221, 767 N.E.2d 678, ¶77.

7

OHIO FIRST DISTRICT COURT OF APPEAI.S

testimony.ll And even if the questions had been improper, given the eyewitness

testimony, we cannot say that the outcome of the trial would have been different had

leading questions not been asked. The fourth assignment of error is overruled.

Ineffective Assistance of Counsel

{¶21} In his fifth assignment of error, Canyon asserts that he was deprived of

the effective assistance of counsel. To prevail on this assignment of error, Canyon must

demonstrate that his counsel's performance was deficient and that, absent his counsePs

errors, the result of the trial would have been different.12 Our review of counsel's

performance must be "highly deferential.",3

{1[22} Canyon contends that his counsel's performance was deficient because he

did not file a motion to suppress the identification by Nelson, Denny, Davis, and Hoover;

failed to conduct a meaningfitl voir dire during jury selection; failed to ask for an expert to

testify about eyewitness testimony; failed to object to the prosecutor's leading questions;

failed to object to the admission of hearsay testimony; failed to object to the admission of

evidence of other crimes or bad acts; and failed to request an in camera inspection of all

witness statements. We consider each of these claims in turn.

{1[23} "Failure to file a suppression motion does not constitute per se ineffective

assistance of counsel."14 Counsel's failure to file a motion to suppress the photographic

identification of Canyon would be prejudicial only if there was a probability of success on

the motion.15 On the record before us, we are not persuaded that a motion to suppress

would have been successful.

11 See Evid.R. 611(C).12 See State v. Bradley (1989),42 Ohio St.3d 136,142,538 N.E.2d 373; Strickland v. Washington(1984), 466 U.S. 668, 687, 104 S.Ct. 2052.13 Strickland, supra, at 689.14 Kimmelman v. Morrison (i986), 477 U.S. 365, 384, io6 S.Ct. 2574.15 State v. 07Iara (June 29, 2001), is' Dist. Nos. C-000314 and C-000318.

8


{124} To have succeeded on his motion to suppress the photographic

identification of Canyon by Hoover, Davis, and Denny, Canyon would have had to have

demonstrated that the identification procedure was unduly suggestive and that the

identi$cation was unreliable.i6 We note first that the array that Detective Pitsch showed

Hoover, Davis, and Denny was not itself unduly suggestive. The array consisted of six

photographs of men who shared physical characteristics.

{¶25} Canyon argues that comments made by Detective Pitsch while showing the

array to Davis, Hoover, and Denny made the procedure unduly suggestive. Davis testified

that Detective Pitsch had `Sust told me to pick out the shooter. [Pitsch] said see if you

recognize any of those guys." Hoover stated that Detective Pitsch had said "that he

believed the guy that did it was on the paper, and he wanted me to take a look at it."

And according to Denny, "[Pitsch] said, look at this lineup and see if you can identify

the right person." Detective Pitsch's testimony differed from that of Davis, Hoover,

and Denny. According to Detective Pitsch, he "asked [Davis] to take a look at this

and see if there was anyone in this that could have possibly been the shooter in this

case." During direct examination, Detective Pitsch testified that he told Hoover, "[I]f

the guy is in here from the shooting, please pick him out." On cross-examination, he

stated, "I told [Hoover] I thought we had a possible suspect, and if he could look at

the photo array, see if he was in there." Finally, Detective Pitsch stated that he told

Denny "just to take a look and see if the person who had shot John Davis was in the

lineup."

{1126} It is possible that, had the trial court believed the testimony of Davis,

Hoover, and Denny, rather than Detective Pitsch's, it could have found that the

identification procedure was unduly suggestive. Canyon would then have had the

i6 State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588 N.E.2d 81g.

9

OHIO FIRST DISTRICI' COURT OF APPEAIS

burden to show that the identifications made by Davis, Hoover, and Denny were

unreliable. But there is nothing in the record to indicate that there was a "substantial

likelihood of misidentification."17 Even Canyon's appellate brief does not contend that the

identifications were unreliable. Rather, he argues that a motion to suppress should have

been filed to determine if they were. On the record before us, we cannot conclude that had

defense counsel ffied a motion to suppress, it would probably have been successful.

{¶27} Canyon also insists that his trial counsel did not conduct a meaningful voir

dire. But he does not allege that there was a problem with the jury that was selected, and

we will not second-guess trial counsel's strategy in choosing the jury. He also maintains

that his counsel should have requested an expert in identification testimony at state

expense. Absent a demonstration in the record that such an expert's testimony would

have resulted in a different trial outcome, we will not second-guess trial counsel's decision

to challenge the identification testimony through cross-examination, rather than with an

expert witness.18

{¶28} Canyon next raises his counsel's failure to object to many of the

prosecutor's leading questions. As we have already diecussed, most of the questions were

leading to move the trial along. It is likely that counsel (hd not want to interrupt the flow

of the trial by objecting to questions that were not prejudicial We will not second-guess

this approach.

{¶29} Canyon also takes issue with his counsel's failure to object to hearsay

testimony by Officer Marcum. Officer Marcum testified that he had received a broadcast

about a car that had been rim off the road. According to the broadcast, the occupants of

the car had fled. According to Officer Marcum, when he arrived at the car, three men-

Isiah Bealer, Justin Nixon, and Darius Lemon-walked out of the woods and approached

17 State v. Haynes, 1st Dist. No. G02o685, 2004-Ohio-762.18 See State v. Madrigal, 87 Ohio St.3d 378, 390-391, 2ooo-Ohio-448, 721 N.E.2d 52.

10


him. With no objection from defense counsel, Officer Marcum testified that the men told

him that they had been chased by a white Cadillac. The trial court sustained defense

counsel's objection when the prosecutor asked whether any of the men mentioned

Canyon. We conclude that Officer Marcum's statements were admissible to explain the

course of the investigation.

{1[30} Canyon also argues that his counsel should have objected when the

prosecutor asked Anthony Nelson, "Is [Canyon] in that business? Does he sell

marijuana?" Nelson responded, "I mean, he did like, you know." Canyon asserts that the

statement amounted to impermissible other-acts testimony. But the prosecutor was

establishing why Nelson had handed his phone to Canyon when Davis called seeking

marijuana. That phone call, according to the state, set up the robbery. We conclude that

Nelson's statements were ad►ni.ssible because they were probative of Canyon's opportunity

to commit the offenses.19 And even if the statements were improper, we cannot say that

had the trial court not permittecl them, the result of the trial would have been different.

{1[31} FinaIly, Canyon asserts that his counsel was ineffective because he did not

request an in camera inspection of witness statements. Canyon does not explain how such

an inspection would have changed the result of the trial, and we cannot say that counsel's

performance fell below an objective standard of reasonableness in this respect20 The fifth

assignment of error is overruled.

Sufficiency and Wefght of the Evidence

{1[32} We next consider Canyon's seventh and eighth assignments of error, in

which he challenges the sufficiency and the weight of the evidence upon which his

convictions were based. A sufficiency argument challenges whether the state

19 Evid.R. 404(B).2o Strickland, supra, at 687.

11

OHIO FIRST DISTRICT COURT OF APPE?li8

presented adequate evidence on each element of the offense.21 On the other hand,

when reviewing whether a judgment is against the manifest weight of the evidence,

we must determine whether the jury clearly lost its way and created a manifest

miscarriage of justice.22 We conclude that the state presented sufficient evidence of

each of the offenses for which Canyon was convicted. And having reviewed all the

evidence, we cannot conclude that the jury's verdict was against the manifest weight

of the evidence. The seventh and eighth assignments of error are not well taken.

Sentencing

{1[33} Canyon's sixth assignment of error is that the trial court erred when it

imposed consecutive sentences for aggravated robbery and felonious assault. He

contends that the offenses are allied offenses of similar import.

{¶34} A defendant cannot be convicted of two offenses if they are allied

offenses of similar import.23 Offenses are allied offenses of similar import "if, in

comparing the elements of the offenses in the abatract, the offenses are so similar

that the commission of one offense will necessarily result in commission of the

other."24 Canyon was convicted of aggravated robbery in violation of R.C.

2911.o1(A)(i), which requires having a deadly weapon and either displaying it,

brandishing it, indicating possession of it, or using it, while committing a theft

offense, and felonious assault in violation of R.C. 2903.11(A)(1), which requires

causing serious physical harm. Commission of one of the offenses does not

necessarily result in commission of the other.

21 See State v. Thompkfns, 78 Ohio St.gd 380, 386,19g7-Ohio-52, 678 N.E.2d g41.See id. at 387.

24 R.C. 2941.25(A).24 State v. Cabrales, 118 Ohio St.gd 54, 2008-Ohio-1625, 886 N.E.2d 181, paragraph one of thesyIIabus.

12


{1[35} Our conclusion comports with State v. Brown, in which the Ohio

Supreme Court held that courts must consider the legislative intent behind the

statutes when determining whether two offenses are allied offenses of similar

import.25 The Ohio Supreme Court recognized that the legislature's intent in drafting

the aggravated-robbery statute was not only to protect property but "to punish the

potential for harm to persons as well as actual harm."26 The felonious-assault statute

was not enacted to protect property. Rather, the statute was intended to prevent

physical harm to persons.27 The additional societal interest protected by the

aggravated-robbery statute-property-evinces a legislative intent to consider the

offenses as having different imports. The sixth assignment of error is overruled.

{136) We, therefore, affirm the judgments of the trial court.

Judgments affirmed.

PAMTEx, P.J., and CvNNnvcx", J., concur.

Please Note:

The court has recorded its own entry on the date of the release of this decision.

25 i19 Ohio St.3d 447, 2oo8-Ohio-4569> 985 N.E.2d 149, at ¶37•26 State a. Wharf, 86 Ohio St.3d 375, .378, 1999-Ohio-112, 7i5 N.E.2d 172, citing State u. Edwards(1976),50 Ohio App.2d 63,361 N.E.2d io83.27 State v. Nesbitt, t^ Dist. No. Go8ooio, 2oo9-Ohio-972, at ¶32. See, also, Brown, supra, at¶g9, citing Whalen v. United States (198o), 445 U.S. 684, ioo S.Ct. 1482 (Rehnquist, J.,dissenting).

13

THE STATE OF OHIO, HAMILTON COUNTYCOURT OF COMMON PLEAS

date: 10/04/2007code: GJRC

judge: 236 'i c4,e,VA G

D75435036

Y" '?rJudge: BETH A MYER

OCT 04 2007 NO: B 0305078-B

STA OF OHIO JUDGMENT ENTRY REVOKINGVS. COMMUNITY CONTROL AND

JIMMY POELLNITZ CANYON IMPOSING SENTENCE

Defendant was present in open Court with Counsel DANIEL F BURKE JR on the 4thday of October 2007 for a hearing on a charge of violation of the conditions ofdefendant's community control. Defendant was informed of the grounds upon whichrevocation of community control was proposed.

The Court afforded the defendant and counsel an opportunity to be heard and to submitevidence on defendant's behalf, together with such facts and circumstances as tend tocontradict or to explain the violation of the conditions of defendant's community control.

Upon consideration of the evidence produced at the hearing, the Court finds that thedefendant violated the conditions of community control.

THEREFORE, the Court revokes the community control heretofore granted to Defendant,and orders that sentence be executed forthwith; to-wit, Defendant is sentenced to beimprisoned for a period of:

CHARGE:count I: AGGRAVATED ROBBERY, 2911-01A2/ORCN,F2, DISMISSALcount 2: ROBBERY, 2911-02A2/ORCN,F2CONFINEMENT:4 Yrs, Credit 180 Days DEPARTMENT OF CORRECTIONS

COMMUNITY CONTROL TERMINATED.

THIS SENTENCE IS TO BE SERVED CONSECUTIVELY TO THESENTENCES IMPOSED IN CASES B0508366 AND B0701463,

FURTHER, IN ACCORDANCE WITH RC 2901.07, THE DEFENDANT ISREQUIRED TO SUBMIT A DNA SPECIMEN WHICH WILL BE COLLECTEDAT THE PRISON, JAIL, CORRECTIONAL OR DETENTION FACILITY TOWHICH THE DEFENDANT HAS BEEN SENTENCED. IF THE SENTENCEINCLUDES ANY PERIOD OF PROBATION OR COMMUNITY CONTROL, ORIF AT ANY TIME THE DEFENDANT IS ON PAROLE, TRANSITIONALCONTROL OR POST-RELEASE CONTROL, THE DEFENDANT WILL BE

i1/

Page ICMSG325N

THE STATE OF 01110, HAMILTON COUNTYCOURT OF COMMON PLEAS

date: 10/04/2007code: GJTtC

judge: 236

Judge: BETH A MYERS

NO: B 0305078-B

STATE OF OHIO JUDGMENT ENTRY REVOKINGVS. COMMUNITY CONTROL AND

JIMMY POELLNITZ CANYON IMPOSING SENTENCE

REQUIRED, AS A CONDITION OF PROBATION, COMMUNITY CONTROL,PAROLE, TRANSITIONAL CONTROL OR POST-RELEASE CONTROL, TOSUBMIT A DNA SPECIMEN TO THE PROBATION DEPARTMENT, ADULTPAROLE AUTHORITY, OR OTHER AUTHORITY AS DESIGNATED BY LAW.IF THE DEFENDANT FAILS OR REFUSES TO SUBMIT TO THE REQUIREDDNA SPECIMEN COLLECTION PROCEDURE, THE DEFENDANT WILL BESUBJECT TO ARREST AND PUNISHMENT FOR VIOLATING THISCONDITION OF PROBATION, COMMUNITY CONTROL, PAROLE,TRANSITIONAL CONTROL OR POST-RELEASE CONTROL.

AS PART OF THE SENTENCE IN THIS CASE, THE DEFENDANT SHALL BESUPERVISED BY THE ADULT PAROLE AUTHORITY AFTER DEFENDANTLEAVES PRISON, WHICH IS REFERRED TO AS POST-RELEASE CONTROL,FOR THREE (3) YEARS.

IF THE DEFENDANT VIOLATES POST-RELEASE CONTROL SUPERVISIONOR ANY CONDITION THEREOF, THE ADULT PAROLE AUTHORITY MAYIMPOSE A PRISON TERM, AS PART OF THE SENTENCE, OF UP TONINE (9) MONTHS, WITH A MAXIMUM FOR REPEATED VIOLATIONS OFFIFTY PERCENT ( 50% ) OF THE STATED PRISON TERM. IF THEDEFENDANT COMMITS A NEW FELONY WHILE SUBJECT TO POST-RELEASE CONTROL, THE DEFENDANT MAY BE SENT TO PRISON FORTHE REMAINING POST-RELEASE CONTROL PERIOD OR TWELVE (12)MONTHS, WHICHEVER IS GREATER. THIS PRISON TERM SHALL BESERVED CONSECUTIVELY TO ANY PRISON TERM IMPOSED FOR THENEW FELONY OF WHICH THE DEFENDANT IS CONVICTED.

Page 2CMSG325N

JTHE STATE OF OHIO, HAMILTON COUNTY

COURT OF COMMON PLEAS

gu

11 ^^

ENTI.^RFCD Judge:BETHAMYER^

Qur 041007 D75435067 {__ J NO B 0508366

date: 10/04/2007code: GJRC .

d e: 236j

STATE OF OHIO JUDGMENT ENTRY REVOKINGVS. COMMUNI'i'Y CONTROL AND

JIMMY CANYON IMPOSING SENTENCE

Defendant was present in open Court with Counsel DANIEL F BURKE JR on the 4thday of October 2007 for a hearing on a charge of violation of the conditions ofdefendant's commtmity control. Defendant was informed of the grounds upon whichrevocation of community control was proposed.

The Court afforded the defendant and counsel an opportunity to be heard and to submitevidence on defendant's behalf, together with such facts and circumstances as tend tocontradict or to explain the violation of the oonditions of defendant's community control.

Upon consideration of the evidence produced at the hearing, the Court finds that thedefendant violated the conditions of community control.

THEREFORE, the Court revokes the community control heretofore granted to Defendant,and orders that sentence be executed forthwith; to-wit, Defendant is sentenced to beimprisoned for a period of:

CHARGE:count 1: ASSAULT, 2903-13A/ORCN,F4CONFINEMENT:12 Mos, Credit 90 Days DEPARTMENT OF CORRECTIONS

COMMUNITY CONTROL TERMINATED.

7'HIS SENTENCE IS TO BE SERVED CONSECUTIVELY TO THESENTENCES IMPOSED IN CASES B0305078 AND B0701463.

FURTHER, IN ACCORDANCE WITH RC 2901.07, THE DEFENDANT ISREQUIRED TO SUBMIT A DNA SPECIMEN WHICH WILL BE COLLECTEDAT THE PRISON, JAIL, CORRECTIONAL OR DETENTION FACILITY TOWHICH THE DEFENDANT HAS BEEN SENTENCED. IF THE SENTENCEINCLUDES ANY PERIOD OF PROBATION OR COMMUNITY CONTROL, ORIF AT ANY TIME THE DEFENDANT IS ON PAROLE, TRANSITIONALCONTROL OR POST-RELEASE CONTROL, THF DEFENDANT WILL BEREQUIRED, AS A CONDITION OF PROBATION, COMMUNITY CONTROL,

Page lCMSG325N

THE STATE OF OHIO, IIAMILTON COUNTYCOURT OF COMMON PLEAS

date: 10/04/2007code: GJRC

judge: 236

Judge: BETH A MYERS

NO: B 0508366

STATE OF OHIO JUDGMENT ENTRY REVOKINGVS. COMMUNITY CONTROL AND

JIMMY CANYON IMPOSING SENTENCE

PAROLE, TRANSITIONAL CONTROL OR POST-RELEASE CONTROL, TOSUBMIT A DNA SPECIMEN TO THE PROBATION DEPARTMENT, ADULTPAROLE AUTHORITY, OR OTHER AUTHORITY AS DESIGNATED BY LAW.IF THE DEFENDANT FAILS OR REFUSES TO SUBMIT TO THE REQUIREDDNA SPECIMEN COLLECTION PROCEDURE, THE DEFENDANT WILL BESUBJECT TO ARREST AND PUNISHMENT FOR VIOLATING THISCONDITION OF PROBATION, COMMUNITY CONTROL, PAROLE,TRANSITIONAL CONTROL OR POST-RELEASE CONTROL.

AS PART OF THE SENTENCE IN THIS CASE, THE DEFENDANT MAY BESUPERVISED BY THE ADULT PAROLE AUTHORITY AFTER DEFENDANTLEAVES PRISON, WHICH IS REFERRED TO AS POST-RELEASE CONTROL,FOR UP TO THREE (3) YEARS AS DETERMINED BY THE ADULT PAROLEAUTHORITY.

IF THE DEFENDANT VIOLATES POST-RELEASE CONTROL SUPERVISIONOR ANY CONDITION THEREOF, THE ADULT PAROLE AUTHORITY MAYIMPOSE A PRISON TERM, AS PART OF THE SENTENCE, OF UP TONINE (9) MONTHS, WITH A MAXIMUM FOR REPEATED VIOLATIONS OFFIFTY PERCENT ( 50"/0 ) OF THE STATED PRISON TERM. IF THEDEFENDANT COMMITS A NEW FELONY WHILE SUBJECT TO POST-RELEASE CONTROL, THE DEFENDANT MAY BE SENT TO PRISON FORTHE REMAINING POST-RELEASE CONTROL PERIOD OR TWELVE (12)MONTHS, WHICHEVER IS GREATER. THIS PRISON TERM SHALL BESERVED CONSECUTIVELY TO ANY PRISON TERM IMPOSED FOR THENEW FELONY OF WHICH THE DEFENDANT IS CONVICTED.

Page 2CMSG325N

d-.THE STATE OF OHIO, HAMILTON COUNTY

COURT OF COMMON PLEASdate: 10/04/2007code: GJEI

judge: 236

ENTEFtF15

OCT 04 2007

G-1Judge: BETH A MYER

NO: B 0701463

-STAZMOF OHIO JUDGMENT ENTRY: SENTENCE:VS. INCARCERATION

JIMMY P CANYON JR

Defendant was present in open Court with Counsel DANIEL F BURKE JR on the 4thday of October 2007 for sentence.The court informed the defendant that, as the defendant well knew, after defendantentering a plea of not guilty and after trial by jury, the defendant has been found guilty ofthe offense(s) of:count 1: AGGRAVATED ROBBERY WITH SPECIFICATION #1,2911-OIAI/ORCN,F1count 2: AGGRAVATED ROBBERY WITH SPECIFICATION #1,2911-01A3/ORCN,F1count 3: FELONIOUS ASSAULT WITH SPECIFICATION #1,2903-11AI/ORCN,F2count 4: FELONIOUS ASSAULT WITH SPECIFICATION #1,2903-I lA2/ORCN,F2count 5: HAVING WEAPONS WHILE UNDER DISABILITY,2923-13A2/ORCN,F3

The Court afforded defendant's counsel an opportunity to speak on behalf of thedefendant. The Court addressed the defendant personally and asked if the defendantwished to make a statement in the defendant's behalf, or present any information inmitigation of punishment.

Defendant is sentenced to be imprisoned as follows:

count 1: CONFINEMENT: 8 Yrs DEPARTMENT OF CORRECTIONSCONFINEMENT ON SPECIFICATION #1: 3 Yrs DEPARTMENT OF

CORRECTIONScount 2; CONFINEMENT: 8 Yrs DEPARTMENT OF CORRECTIONScount 3: CONFINEMENT: 7 Yrs DEPARTMENT OF CORRECTIONScount 4: CONFINEMENT: 7 Yrs DEPARTMENT OF CORRECTIONScount 5: CONFINEMENT: 4 Yrs DEPARTMENT OF CORRECTIONS

11-

(Page I

CMSG3U6N

THE STATE OF OHIO, IIAMILTON COUNTYCOURT OF COMMON PLEAS

date: 10/04/2007code: GJEI

judge: 236

Judge: BETH A MYERS

NO: B 0701463

STATE OF O1110 JUDGMENT ENTRY: SENTENCE:VS. INCARCERATION

JIMMY P CANYON JR

SPECIFICATIONS #1 TO COUNTS #2, #3, AND #4 ARE MERGED WITHSPECIFICATION #1 TO COUNT #1 FOR THE PURPOSE OF SENTENCING.

THE SENTENCES IN COUNTS #1 AND #2 ARE TO BE SERVEDCONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THESENTENCES IN COUNTS #3, #4, AND #S.

THE SENTENCES IN COUNTS #3 AND #4 ARE TO BE SERVEDCONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THESENTENCES U9 COUNTS #1, #2, AND #5.

THE SENTENCES IN COUNT #5 IS TO BE SERVED CONSECUTIVELY TOTHE SENTENCES IN COUNTS #1, #2, #3, #4.

THIS SENTENCE IS TO BE SERVED CONSECUTIVELY TO THESENTENCES IMPOSED IN CASES B0305078B AND B0508366.

THE DEFENDANT IS TO RECEIVE CREDIT FOR TWO HUNDRED TWENTYNINE (229) DAYS TIME SERVED.

THE DEFENDANT IS TO PAY THE COURT COSTS.

THE DEFENDANT IS TO PAY PUBLIC DEFENDER ATTORNEY FEES.

THE TOTAL AGGREGATE SENTENCE IS TWENTY TWO (22) YEARS INTHE DEPARTMENT OF CORRECTIONS.

FURTHER, IN ACCORDANCE WITH RC 2901.07, THE DEFENDANT ISREQUIRED TO SUBMIT A DNA SPECIMEN WHICH WILL BE COLLECTEDAT THE PRISON, JAIL, CORRECTIONAL OR DETENTION FACILITY TOWHICH THE DEFENDANT HAS BEEN SENTENCED. IF THE SENTENCEINCLUDES ANY PERIOD OF PROBATION OR COMMUNITY CONTROL, ORIF AT ANY TIME THE DEFENDANT IS ON PAROLE, TRANSITIONALCONTROL OR POST-RELEASE CONTROL, THE DEFENDANT WILL BE

Page 2CMSG306N

THE STATE OF OHIO, HAMILTON COUNTYCOURT OF COMMON PLEAS

date: 10/04l2007code: GJEI

judge: 236

Judge: BETH A MYERS

NO: B 0701463

STATE OF OHIO JUDGMENT ENTRY: SENTENCE:VS. INCARCERATION

JIMMY P CANYON JR

REQUIRED, AS A CONDITION OF PROBATION, COMMUNITY CONTROL,PAROLE, TRANSITIONAL CONTROL OR POST-RELEASE CONTROL, TOSUBMIT A DNA SPECIMEN TO THE PROBATION DEPARTMENT, ADULTPAROLE AUTHORITY, OR OTHER AUTHORITY AS DESIGNATED BY LAW.IF THE DEFENDANT FAILS OR REFUSES TO SUBMIT TO THE REQUIREDDNA SPECIMEN COLLECTION PROCEDURE, THE DEFENDANT WILL BESUBJECT TO ARREST AND PUNISHMFNT FOR VIOLATING THISCONDITION OF PROBATION, COMMUNTTY CONTROL, PAROLE,TRANSITIONAL CONTROL OR POST-RELEASE CONTROL.

AS PART OF THE SENTENCE IN THIS CASE, THE DEFENDANT SHALL BESUPERVISED BY THE ADULT PAROLE AUTHORITY AFTER DEFENDANTLEAVES PRISON, WHICH IS REFERRED TO AS POST-RELEASE CONTROL,FOR FIVE (5) YEARS.

IF THE DEFENDANT VIOLATES POST-RELEASE CONTROL SUPERVISIONOR ANY CONDITION THEREOF, THE ADULT PAROLE AUTHORITY MAYIMPOSE A PRISON TERM, AS PART OF THE SENTENCE, OF UP TONINE (9) MONTHS, WITH A MAXIMUM FOR REPEATED VIOLATIONS OFFIFTY PERCENT ( 50% ) OF THE STATED PRISON TERM. IF THEDEFENDANT COMMITS A NEW FELONY WHILE SUBJECT TO POST-RELEASE CONTROL, THE DEFENDANT MAY BE SENT TO PRISON FORTHE REMAINING POST-RELEASF, CONTROL PERIOD OR TWELVE (12)MONTHS, WHICHEVER IS GREATER. THIS PRISON TERM SHALL BESERVED CONSECUTIVELY TO ANY PRISON TERM IMPOSED FOR THENEW FELONY OF WHICH THE DEFENDANT IS CONVICTED.

Pege 3CMSC3306N

09-0792appendix (attached): opinion and entry of first district court of appeals, march 20, 2009;...

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