r eflw - ohio supreme courttake off ronning away from the defendant. transcript page 260. further,...

IN THE S - MMT OF C+HIO

State of Ohio,

P3.aa.ntia f -Apgellee,

V.

Sidney L. Rucker

Defendant-Appellant

Case NOi 2 2 0 15. ^

On Appeal froin the No-ntgomery

County Court of Appeals,

Ser-c^nd, Appellate District

C.A. Case DIQ. 24?40

^ ^ 10RAN]DUM MT SUPPORT OF Jt7RISDICI.'I^

Otr! ^^'ELIMÌ' SILîNEY L. RU^.^

SIDNEY L. ^^^ ^ #638-491

ldcars.on Correctional Inst.

P.O. Box -5.6

LebanonS.Oh.. 45036

(513) 208-6458

DEFENDANT-APPELANT APPEARS PRO-S"

MMAS I? . BECK, .3oR..

PROSEC€TMG ^. ^ÊY

By R. ^^^^T MIMSTINE

REG. NO.0061560

Assistant Prosecuting Attorney

lvont^^^ry County Prosecutors Office

14ontgomery County Gotmts Building

P.O. Box 972

301 I-les^ Second St.

Dayton, Oh. 45422

(937) 225-4117

ATIORINEY F4r STATE OF' 0'el.-J-0 PIAIN _ F-A.PPE

R EflWDEC os 201 2

DEC 03 20 12

CLERK OF COURTSUPREME COURT OF OHIO

CLERK OF COURTSUPREME COURT O^ OHIO

TABLE OF CQNiT=S Page*1 i4

EMANATICN OF WH5.' CASE INVOLVES A SUBSTMITIA.L CONSTIT[7TIOÂL QUESTI®N ...............2-3

STAMM OF FAGTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... 3-4

STATOCM OF CASE ......................................................................4

APGIIMTT IDT SJPP tlP.Ì` OF PROPOSITION OF 'LAW ............................................ 4-9

PPROPOSITION OF LAT,v^ NO. 1 FAI7 [TRE TO GRAff MOTION. TO SUPPRESS .......................... 4g6

PROPOSITI£3N OP IA14 N30.2 PROSECtITORLAL® MISt^ÛCr .....................................6-7

PROPOSITION OF LAW NO.3 ANSWERING OF QUESnfl^ ^^^^ DELIBERATIONS IqIT14-OIIT COUNSEL PRE-

Sm ...................................................................................7

PROPOSITION t3F IAW NO.4 AGGRAVATED ROBBERY AND KIDNAPPING ARE ALLIED OFFENSES OF SIlklILAR

IMP+,T AND SUBJECT °iO MERG EP .... ..................................................... 7-8

PROPOS3TIO'Lg OF --rAW NO.5 INEFFEGTTVE TRT-AL COMSEL. FOR FAILING TO €^^JECT AID RAISE ISSUES

.....................................................................................U-9

C',1NGLUSION ............................................................................1o

CEI,TIFICATE OF SERI'IC-P ................................................. ..........s• .10

APPaIDIX APPOX. PAGE,

QPINICTx OF THE ^^^^ÊRY GfltRITY COURT OF APPEALS (ocT.19, 2012) . . . . . . . . . . . . . . . . . . . . . . . .1

.Nt3G MT 5-,TRY OF THE tviC3^ MERY COUM COURT OF APPEALS (QGT.19,2012) ...............25

^ MN.'I°^^ OF I-^^ THIS CASE IINOLVES

A SUBSTANIIAL CONI,sTITÔNAL QUESTION

'Znis case presents several substantial constitutional questions for this Courts

revLa,7. Rucker's appointed coLmse^ fiIecl a'Drief pursuant to Anders v. Californis. (1967)

386 U.S. 7338, 87 S.Ct.1396,15 L Ed. 2d. 491", stating that after careful review of the

record, he could fand no non-frivolous issues for appellate review. Nevertheless,counsel

identified wo possible assigr-nents of error, namely that Rucker's conviction was based

on insufficient evidence and was against the manifest weight of evidence, and that t'ihe

trial Court erred in overruling 1-ds motion to siTpress evidence.

-2nicker -was informed that his counsel had fi-led an Anders brief and grantecl. Inim, tê

to sti-bmit a pro-se brief. Rucker res^mded with a pro-se brief, Vnich claims that his

trial coimsel rendered ineffective assistance, that the prosecutor engaged in misconduct

by using and failing to correct perjured testimony 'oy fine states witnesses, and t^t his

convictions were based on insufficient evidence.

Second District Appellant Court condLicted their %m independent revimi of Vine

record pursuant to Penson v.. Ohio (1958),4-58 U.S.75,109 S.Ct.346,102 L.Ed.2d 300, and

concluded t1ha^ the record revealed several potential assigve-ttts of error with merit and

that furt'xher briefing by ne%,,= Appellate counselwas warranted.^ ^yFurther, ^^+,u^"^.i^^ ^ ,.., I,a^^.î'; e6. î^'^;? ^?^s' ^ ^.. ;: ^.^^.d a.^;, I ac.^^ ^ ^s

App,p,e^ ^,aL.-n,t ^ ^ôurt. Wa.t^.^. respect to Ru&.êr's ^ôtiQn to surpress ene Appellant Court and

Appellant cour^sel foundthat -the parties and trial court didnot question EAriether

Rucker 's apprehension vjhich led to tl-ie seizure of Ruc^.êr 's personal property and a shcn-i4

azp identification by the victim was constatistaonally permissible. Appellant counsel

cited numerous cases one of In re Byrne, 1999 Ob? o App. LMS 341&,p.2 (Oliio Ct. App• ,

Geauqq County July 23, 1999), and said that deputies lacked both a reasonable and

articulable suspicion of criminal a.ctivity (needed for Terry stop) and probable cause

(needed for an arrest) to justify his detention. Counsel and. court also found that tRne

show®up identifir-ation at the victim®s residence was the prod^.^ct of an unLaxqful deten-

tion and the seizure of Ruc^.êr 's property was mconstitutiorâl.

Appellant cot..^sel and Appellant Court also found instances of prosecutorial ,^scon-

duct based on statements by tl-ie prosecutor (during closing argumnts) that "(W)e do -not

rewârd. defendarcts for getting rid of the gun.We don' t do it.^^

Appellant counsel and Appellant Coi_irt also found, that ameritorioLis claim exists

concerning tl-ie trial court's answering of ajgiry question durirgg deliberations without

coLmsel present.

-.i.a F[..v

Appellant cotmsel also foa-ind that Appellant's convictions were allied offenses of

sinilar i.rt. Finally Appellant counsel also found the trial coun.sel was ineffective

for failing to raise all ineritorious claims presented.

After counsel submitted a brief for appellant bac]k to the Secon-J. District Appellant

court, the court of appeals decided, that the errors that took place xahere of inconse-

quential nature or harrnless e-i-rors.'Ihe cotirt did not find Vnat in the aggregate or

cumulatively, all of these small errors ainoonted to a reversible unfairness.

STAT . ^ ^ ^'^`I:' Of FACIS

tir. Leigh testified that the Defendant opened up Mr. Leigh's car door, pulls a gun

on Mr. Leigh, points it at Mr. Leighs chest and tells Mr. Leigh to drive and take me to

the money. Transcript pages 198 to 200. Further, Mr. Leigh testified that the defendant

told il.im to take Inin to the money or I'm going to shoot you. Transcrigt pages 200 to 201

Mr. Leigh further testified that the defendant took $18.00 frorn Mr. Leigh's wallet.

Transcript page 200. Further, Mr. Leigh testified that the defendant ordered Dtr. Leigh

to take 1-dm to the money and to Mr. Leigh's truck. Transcript page 201. Further, Mr.

Leigh testified, that he ^:odk. 4 „ ..efendant to Mr. Leigb: Sked hi-s

mo^:he^~ if she would give h^ some mney. ^`zar^script page 204. Mr. Leigh further testifi-

ed that T,4Zen the Defe-ndant's attention was diverted, Fir. Leigh took this opportunity to

take off ronning away from the Defendant. Transcript page 260. Further, Regi^.-aald Lewis,

a neighbor, testified that he saw Defendant pointing a gun at Mr. James Leigh. Tran-

script page 364.

Sidney Rucker, the Defendant, testified that on June 23, 2010; he had met Fr. Leigh

for the second time. The first was a cob-ple of weeks before June 23, 2010, when Sidney

Rucker sold Mr. Leigh a bag of marijuana for $50.00 on credit. Transcript page 430-431.

Then again on June 23, 2010, Sidney Rucker saw Mr. Leigh at the Citizens Mart and Sidney

approached N' r. Leigh about the money Mr. Leigh ocaed. Sidney. Transcript page 432. Sidney

further testified that Vr. Leigh gave him a small amount of money but it was not close

to the $50.00 that he owedSidney. Transcript page 434. So, Sidney fiLzrther testified

that Mr. heigh invited him, to Mr. Leigh's vehicle ard. they went to Mr. Leigh's mther's

house to retrieve the rest of the money Vnat Mr. Leigh ox-Ted Sa.dney. Transcript pages 435

-436. Sidney further testified that he did not have any go.n on him. Transcript page 435.

Sidney testified that 1-te sees Mr. Leigh go into the house and Sidney followed behind him

, witnessing Mr. Leigh talk to his mother. Transcript page 439. Then the two of them

exited the house, they talked to a neighbor, Mr. Anderson, Eaho is asking Mr. Leigh for a

cigarette. Transcript page 441-442. After tir. Anderson obtains a cigarette from Mr.

Leigh, Vx. Sidney Rucker testifies that Vr. Leigh and Vr. Rucker walk back across the

street where he presmies Mr. Leigh is going to take him back to the store where his

vehicle -eias left. Transcrapt page 442. Then Mr. Leigh's wther came out of the house and

started talking briefly to her son. Transcript page 444. Then Sidney Rucker testified

that Mr. Leigh started running across the street leaving him and. Yx. Leigh's mother.

Sidney then testified that he walked back towards Mr. Anderson's honse to see where Mr.

Leigh started to run all of a sudden because Mr. Leigh was trying to get out of paying

Sidney the money that he owed Sidney. Transcrig-t page 446. Sidney further testified that

he never had a gL.m. nor pointed the g^.a.n at Mr. Leigh. Transcript page 447-448. Finally,

Sidney testifies that he decides to leave the area and that is vihen he is stopped by the

Sheriffs. Transcript pages 449-450.

STATEqRff OF CASE

On Jn.ly 23, 2010 Appellant Sidney Rfucker II was indicted by a Montgomery County

grand. ^^.^^;? for one co^nnt of agg^ .. r ^..e °f and ^M - c^°nt of 3îdnspping esc^: ^,^^t^^

firearm specificati.ons. Tlie matter was tried to a grand jury in September of 2010 and

Rucker was found guilty as charged.. The Hon. Tit.othy O'Connell sentenced Rucker to serve

four years for the aggravated robbery and three years for the kidnapping, to be served

concurrently. A three year sentence was also i mposed for the merged firearm specifica-

tions, making a total sentence of seven years.Herein Appellant appealed his Viontgomery County convictions and sentence for one

coiant of aggravated robbery and one count of kidnapping each with a firearm specifica-

tion. Appellant's first Appellate counsel filed an Anders brief, which Appellant supple-

mnted.npon notice thereof from Appellant court. The appellant court found nunterons

potential assignments of error with arguable merit in its review and will brief this

court on said issues.

ARGUM^T IN SUPPO-RT OE ^'i 0POSITZC314 OF LAW

Proâsition of Law .1 The deputy that effectuated the stop of appellant lacked a reas-

onable articulable suspicion and probable cause to do so. Also, that the show-np ident-

ification by Mr. Leigh was unduly suggestive. "At a hearing on a motion to suppress, the

trial court fnnc.tions as the trier of fact, and therefore is in the best position to

weigh the evidence by resolving factual questions and evaluating the credibility of any

witnesses." State v. Maloney, llth Dist. tô.2007-G-27$8, 2008 Ohio 1492,p19,quoting

State v. McGray, llth Dist.No.2006-T-0127 Ohio 4766,P20, citing State v. Molek, ii.th

Dist.No.2001-P-0147,2002 Ch.io 7159, P24, citing State v. Mills (1992),62 Ohio St.3d.

357,365,582 N.E.2d 972.'lhus (a)n appellate court must accept the findings of fact of

the trial court as long as those findings are supported by competent, credible eviden-

ce.sg Id., citing McGray, citing State v. Retherford (1994), 93 Ohio App. #d 536,592,539

N.E.2d 498. "After accepting such factual findings as true, the reviewing court must

then independently determine, as a matter of law, wAaether or not the applicable standard

has been met. q ° Id.

It is well established t'hat police officers do not need probable cause to conduct a

brief investigatory stop, but rather, may conduct sucl-i a stop on the basis of reasonable

suspicion of criminal activity. Terry, Supra; State v. UTirema.n (1993),86 Ohio App.3d 451

,521 N.E.2d 542. The investigative stop must be s'°reasona.ble at the inception and based

upon specific and articulable facts that encompass the totality of ^ =lurround°ing cir-

c ' , - :Y itself la.c'ks suf ficient ind:icia of reliability may nonethe-

less provide reasonable suspicion justifying an investigative detention where it is sufm-

ficiently corroborated through independent police work. State v. HalaT€lan (1995), 108

Obio App.3d. 33, 669 N.E. 2d 883; State v. Campbell (1990), 68 Ohio App.-Id. 688,589 N.E.2d

452. However "s:nple corroboration of neutral details describing the suspect or other

conditions existing at the time of tip, w? thout more, will not produce reasonable suspi-

cion for an investigatory stop. To niake a warrantless arrest, a police officer wtust have

, at the time of arrest, probable cause to believe the accused comitted a felony. State

v. Timson (1974), 38 4rnio St.2d122, 311 N.E.2d 16, paragra.ph one of the syllabus. An

arrest iqithout awarrrant is constitutionally invalid unless the arresting officer bad.

pro'e3a.ble cause to make the arrest at tl-ie time." Id. Probable cause to arrest exists when

the facts and circumstances xq.i.tbin the arresting officers knowledge are sufficient to

warrant a reasonable person to believe that a crime has been comitted and that the per-

son to be arrested cozsmitted it. See Beck v. Ohio (1954),379 U.S.89,13 l,.Ed.2d142, 855.

CT.2L•3.The Second District and Appellant Court has been specifically rejected tbe proposi-

tion that "where without more, the police observe an individual who meets the physical

description proved by the anonymous informant and is found in the 3.ocation described by

the infonant, the police have corroborated sufficient to entertain a reasonable and

articuable suspicion that the individual was involved in criminal activity." State v.s.

Harris (May 18, 1994),Mont.Co.App. h1o.1413.2, unreported.

In. the case of In re Byrne, 1999 Ohio App.LM_S 3418,p.2 (Ohio ct.App.,Geaugg

county July 23, 21.199), the state argued, that appellant was not arrested at the time he

entered the police crtiise.r to be taken to the station, the trial court deterirbined that

the appellant was placed under arrest at that tine and taken into custody by tl-ie officer

and transported a short distance to the Middlefield Police Department. "Based aapon tb.e

evidence presented , the trial court concluded. tx-ia.t the officers involved 1-iad probable

cause to believe that appellant 1-iad cormitted a crime because appellant matched the

description of the suspect and was fo-d in relatively close pro-ircimity in time ancl place

to where the suspect had last been seen." Id.. at p.8.

Tne Eleventh District Court of Appeals,"(did) not agree with the trial courts con-, _

..^^....::,._,..^..,;nt these 4 ^dl-s sC ._ ....e .._. ._.m',. possessed vrc;..+c:.'._e ^'.ause to

arrest appellant. Prcbabl-Le cause is a reasonable gronnd for belief of guilt. Brin.egar v.

United States (1949),338 U.S.160,175,695. ct.1302,1320,93 L.Ed.1879.

T'n.e facts in the case at bar are indistinguishable from those of In re Byrne. When

the officers' stop of appellant failed to reveal any infoz-v€ation suggestLng that Appel^

lant was involved in the alleged incident, further inve stigation i-ias required prior to

arrest. At the time Appellant x-aas arrested, the only evidence linking him to the crhae

was that he was a dark sk3smed male. Where an arrest without a warrant violates probable

cause re 'rermnts under the Fourth and Fourteenth Ame nts to the United States Con-

stitution, evidence secured as an incident to sucb an arrest should have been excluded

from trial. State v. :" on (1974),38 Ohio st. 2d122,311 N.E.2d 16, at paragraph two of

the syllabus. Accordingly the "live identi.ficatioe' and further the articles of l-

l.ants clothing viere also obtained illegally pursuant to the same stop and arrest, and

should have been suppressed. Also, neither the victim or xdtnesses bot1aered to show at

the motion to suppress, &dcb.violated. appellants constitutional right to confrontation.

fLoposition of l,aw NT0.2 This court sbould except jurisdiction to der-ide if the prosecu-

tion ' tted. prosecutorial misconduct based on statements by the prosecutor that "(W)e

do not reward Defendants for getting rid of the gun. lie don't do it." %en determining

w-bether a prosecutor's remarks constitute prosecutorial misconclucct, (courts) analyze®(1)

whether the remarks viere improper and (2), if so, whether the remarks prejudicially

affected the accused's substantial rights. State v. Richmond, 2006 (Obio 4518.p14 (Ohio

ct. ., Greene County Sept.1, 2006) .'Ib.e touchstone of analysis is tbe fairness of the

trial, not the culpability of the proser-utor. Id. Trial is not deemed unfair if, in the

context of the entire trial, it appears clear beyond a reasonable doubt that the jury

wuld have found the defendant guilty even without the improper entss." State v.

Tenance,109 Ohio st.3d 255, 2006 Ohio 2417,847 N.E.2d 386, at p45, internal citations

omitted.Prosecutors and defense counsel 'nwe a wide degree of latitude during closing argu-

ments to address wbat the evidence has sb.om and xvbat reasonable inferences may be dra-vm

from that evidence. State v. Lott (1990),51 Ohio st.3d 160,165,555 N.E.2d 293. However,

prosecutors must refrain from making Fiisleading insinuations and assertions as well as

expressing personal beliefs or opinions regarding the defendants guilt. Id. At 166. Pro-

secutors must also refrain from alluding to matters unsupported by admissible evidence.

Id."It is a prosecutors duty in closing ar i^ents to avoid efforts to obtain a con-Ac-

ti on by going beyond tbe evidence which is before tb-e ju._nj. " vt'a°e v. Smitb (1984), 14

Ohio S'L. rw' _13 ^ j ^,F^ ^_ 0 ? ^y^ 3^.7 , ^^ 70 ?^? . F . 2d S^3S . Such actions "invade () the pro^rir^ce of^

the jury, and invite () the jury to decide the case based upon the credibility and stat-

us of t..he prosecutor." State v. Draughn (1992), 76 Chio App.3d 664,670,602 N.E.2d 790.

The statement of the prosecuting attorney to the jury on closing arguments expressing

his personal opinion or belief in the guilt of the accused in su&h amanner that tbe

jury may understand that such opinion or belief is based on information or an inn`restiga-

tion outside the evidence is ma.sconduct highly prejudicial to the accused and is rever-

, ` e ermr. State v. _ yer 124 Chio st.1, 75 A.L.R.U.Thus the above noted statetnent made by tl°ie prosecuting attorney in this rmtter, to

the jxxy, during closing argLnents, expressing his personal opinion o-f belief in the

gLiilt of the accused is misconduct and is bigbl.y prejudicial to tl°ie accused. Transcript

page 533. Tde proseci-itors statements constitutes reversible error; requiring tbat a nexa

trial be ordered. Appellant respectfnlly reqtiests same.

Pro-oosi.tion of 1.aw NO.3 This court s'nould except jc.^risd:a.cta.o-n to decide if the ans-aering

of aj^.^ry question during d.eiiberations withoutt coa.msel present was meritorious. During

deliberations the trial attorney did object to this error and asked. One judge to move

for amis tri.al. Transcri.pt pages 576-577 .'.ê trial court however overruled on this err-

or. State v. Grisafulli, 135 Ohio st., 87, 19 N.E.(2d), 645, holds that by virtue of

section 10, Arta.cl_e I of the Constitution, and the section recited., it is the right of a

defendant to be present shen a jury, during its deliberation, returns to the courtroom

for further instruction as to the law, vha.ere accused is effected by such instruction.

The giving of sticb instruction, during the absence of the accLised, w-a.thout his knowledge

and while he is involuntary confined ir jail, constitLites prejudicial error." Fubbuch v.

Springfeild, 63 O',hio App. 329, 337 (Ohio ct. App., Clarl-, county 1939).

Jones v. State (1875), 135 Ob.i.o st 87, stands for the proposition that the right to

be present at jury questions and instructions cannot be waived by counsel, alt]-hough this

holding appears to have been modified by the Ohio Supreme Court. The cotwt has monrey -g^

^ â ât £^^^^^ ^'[tê^ a new t€ - a4 - s ^?o^ î-p ,ra'."oq`7e's" `^. ec:.,: . . ^x ; , z,.^.^ ed

rmed.y unless the defendants right to fair trial was prejudiced. State v. Abrams (1974),

39 Ohio st. 2d. 53,56,313 N.E.2d 823. Môreover, it has been held that a defendant wbo is

absent during additional jury instructions is not prejudiced where his attorney is pre-

sent to object. State v. Bia.ctaqe.3.i (1984), 16 Ohio App. 3d 100, 474 N.E.2c. 671., , .

In the -...c?^'^' at ',.'a ^^ , ^`.^;.f^? a:.''w^: :^'?w.r1.vE..'.^.^ a ''.?r.,^'r:;^,G''ili irCfiTl jury, and

counsel could not imediately reach counsel, for both the state and the defense, the

court answered with question for the jury in writing witbout either counsel having an

opportunity to object or to offer their input about how the question should be answered.

Respective counsel later had an opportLmity to review the jury's question but did not

agree as to hrva it should be answered. There is a reasonable probability tl-iat appellants

trial was less fair as aresult of trial courts unilateral ansi,,7ering of the first jury

question. Thus, Appellant respectfully requests Vnat this coLirt order that a new trial

be held.

'^^.^ (i 1 `jG:"t of T..c_^•â t',L aC^ 1tl9^,^ court ^î;^ti .^l1 ^C.^ CÊ^2:Z..C^,e _t.. C^f^'Y..`tCa^lli.s;

offenses sb.ould s-s.ave been merged as allied offenses of sin-ii.ar "znport. The trial court

sentenced Appellant to four (4) years CRC on the aggravated robbery count and to three

(3) years CRC on the ls.idnapping connt, to be seved concLirrently. The trial court also

sentenced -Appellant to three (3) years CRC on the firearm specifications to be served

consecutively to the ota.ther counts. Appellant was convicted of aggravated robbery and

kidnapping, both ^.^ifh firearm specifications. The trial court specific.ally found that

the offenses were not allied offenses of similar i€nport. The Ohio Supreme Goajrt has re-

jected a "strict textLial comparison" and stated, "Instead,if,in comparing the elemnts

of the offenses in the abstract, the offenses are so similar ena.t the comission of one

offense -ill necessarily result in m°ssion of the other, then the offenses are allied

offenses of similar import." State v. Cabrales, 118 Ohio st.3d 54, 2008 Ohio 1625, 886

N.E.2d 183, P26. Cabrales explained that elements need-not be identical for offenses to

be allied. 'II-ie trial coLirt erred in this additional respect and thus Appellant requests

Vnat this court order that the separate conv-iction and sentence imposed on the kid.na.pp-

ing count be vacated accordingly.

Eroposition of iaw aN30.5 This court should except jurisdiction to decide if Appellants

trial counsel iaas ineffective for failing to object and raise all nieri torious issi,:aes

above. if a co^-nsel -vzas ineffe;.wtive in in-

vestigation, preparation, or for some other substa.ntial reason, the trial court has a

constitutional duty to conduct an inquiry sufficient to determine the trLith and scope of

defendants allegations. The court must make on-the-record findings sufficient to pernait

meaningful revie-w on the issue of the ability and preparedness of the counsel to render

in effective assistance under the prevailing circumstances. 'lne fact that during pre-

liminary hearing, the trial counsel asked about the camera footage from the store and

neglected to retrieve video is substantial reason to assume neglect and preparation of

trial counsels duties.The defendant has a right to expect that his attorney will use every s^.^iil, expend

every energy, and top every legitimate resource in exercise of independent professional

judgement on behalf of defendant and undertaking representation. Frazer v. UnitedStates,

18 F.3d 778, 779 (9th Cir.10,94)g U.S.C.A. Const. Amend.6. counsel owes defendant duty of

loyalty, unhindered by state or counsels constitntionaly deficient performance.

In showing ineffectiveness of counsel defendant must shovi that counsels performance

was deficient. Second, the defendant must show that the deficient performance predju-

diced the defense. 'Ihis requires showing that cot_msels errors were so serious as to de-

pr,°_ve the defendant of a fair trial, a trial whose result is reliable. Strictland, at

687. lneffectiveness is presmed when actua.l conflict of interest is shoyAm or an irre-

concilable conflict betvieen counsel and the defendant.

In the case at bar counsel was ineffective in investigation preparation. During

pretrial, defense counsel asked on record if there were c,-mras at the Citizens Mart at

a taY.T1.:s qj'.r

investigate`'E..i^).t? t-3..it1-'. of allegeCi iaoa:msu?l 1'^ 'c 7.If?d. to :1.c^'.^:1ti retrieve footage from the... .-^ ^

store. In retrieving footage counsel could have shown the credibility of botb. Mr. Rucker

(appellant) and Mr. Leigh's (victim) statements. This error deprived appellant of a fair

trial by failing to investigate mitigating evidence. Trail counsel also failed to advo-

cate the defendants theory of the case by not exploring the statements of the victim and

witnesses and addressing the inconsistencies. ihis error also sbmieez negligence and lack

of etnics for failing to investigate properly by gathering video tape and thoroughly

questioning nentraZ witness. The neglection of investigati.on sb.owed in t-peten.ce (Pule

1.1) and prejudiced the appellant.The Six Amendment requires investigation and preparation, not only to exonerate,but

also to secure and prestect- Vt-ie r-" '-s of the accuse.. . S'u > . . ...:e ^::. ^ s ar^::.

granted toO;e i^^^.,ocent and guilty alike, and failure to i_nvestigate and file appropri-

ate motions is ineffectiveness. Ki lmn v. ^Iorri.son, 447 U.S. 365, 91 L. Ed.2d 305,106

S.ct 2574 (1986). A lawyers duty to investigate is virtually absolute regardless of a

clients expressed wishes. Silva v. Woodford, 279 F.3d. 525 (9th Cir.2002).

Before closing let it be noted Viiat appellant tried to seek other representation

due to ineffective investigation during the motion to suppress hearing and was overruled

which also prejudiced appellant. Trial counsel was also ineiEfective for failing to ob-

ject to prosecutor ^.iscondu.ct and arguing properly the arrest of appellant. Proper in-

vestigation and retrieval of vid.eocioul.d also have rendered other aspects of the case

uranecessary.

CONCLUSION

s. v^ x

For the reasons discussed above, this case involves matters of g^hiic and great

geooral interest a-nd a substantial constitutional question. The appellant reqLtests that

this court accept jurisdiction in this case so that the important issues presented will

be reviewed on the nierits.

Respectfully s^bmi^ted,

Sidttey Ruoker

De.^erKiant-Appellant

Pro-Se

CER`I"CFICATE. OF SREVICE

I certify that a copy of the f-orogoing Memora . In Support of Jurisdiction was

sent by regLilar U.S. mail to counsel for Appellee, Montgomery Comty Prosecutor,

I-®ntgoinery County C n Pleas CoLwt, P.O.Box 972, Dayton, Ohio 45422-0972 th.is21 day

of Nov, 2012 .

IN "T^ ^^IRIE atlRT OF OHIO

State of 011-iQ,

Plaintiff-Appellee

V.

Sidney Rucker

Defendant-Appellant

. Case NO.

irorn t'ne ViontgcameryOn Appeal

County Court of Appeals,2nd

District

C.A. Case NO.24340

AP'P IX TEJ

K)RANDtM IN SUPPORT OF JURISl)ICI`ION

OF A.PPEU.NTI' SIDNTY RUCKER

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee

V.

SIDNEY RUCKER, II

Defendant-Appellant

OPINION

C.A. CASE NO. 24340

T.C. NO. 10CR1986

(Criminal appeal fromCommon Pleas Court)

Rendered on the 19th day of October , 2012.

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.Third Street, 5th Floor, Dayton, Ohio 45422

Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 15 West Fourth Street, Suite 100,

Dayton, Ohio 45402Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1) Sidney Rucker was convicted, after a jury trial, of aggravated robbery and

kidnapping, each with a firearm specification. The trial court sentenced Rucker to four

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

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years for the aggravated robbery and three years for the kidnapping, to be served

concurrently. The court merged the firearm specifications and imposed an additional three

years of incarceration for the specification, for an aggregate sentence of seven years in

prison. Rucker appeals from his convictions.

{¶ 2) Rucker's original appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after

thoroughly examining the record and the law, he found no potentially meritorious issues

for appeal. Upon an initial review, we found that potentially meritorious issues existed, and

we appointed new counsel.

(13) Rucker now raises six assignment of errors on appeal. For the following

reasons, the trial court's judgment will be affirmed.

1.

(14) Although Rucker has not raised an argument based on the sufficiency or

weight of the evidence, a summary of the evidence at trial will assist in our review of

several of his assignments of error.

{¶ 5) According to the State's evidence, in the early afternoon on June 23, 2010,

James Leigh returned to the Dayton area after completing a commercial trucking job. After

spending some time at Stanley Truck Sales, where he stores his truck, Leigh went to his

parents' home, where he lived with his maternal grandmother, parents, teenaged niece,

and young daughter. Sometime after 5:00 p.m., Leigh arranged to meet a female

acquaintance at Citizen Mart, the nearby "corner store."

{¶ 6) Leigh drove his mother's car_to Citizen Mart, bought some cigarettes, and

then waited in the car for his friend. While Leigh waited, an unfamiliar young man wearing


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a red polo shirt and blue jean shorts knocked on the driver's side door. Leigh lowered the

window, and the man told him that his car had run out of gas; the man asked for a ride to

the gas station. Leigh responded that he was "not going that way" and that he was "doing

something." The man said "okay" and stepped away. Immediately afterward, Leigh drove

to another friend's home and, when she was not there, he returned to Citizen Mart.

{¶ 7} While Leigh sat in his car in the parking lot, the same young man (later

identified as Rucker) got into the passenger side of the car, pulled out a gun, and

repeatedly told Leigh to "drive" and "take me to the money." Leigh threw his wallet at

Rucker, and Rucker retrieved $18 - two $5 and eight $1 bills. Rucker still threatened to

shoot Leigh and told Leigh to take him to an ATM and to Leigh's truck. Leigh did not have

an ATM card; he drove toward his home. While en route, Leigh tried unsuccessfully to

grab the gun. Rucker swung the gun, hit Leigh on the side of his face, and threatened to

shoot Leigh if he "tried that again."

(18) When Leigh got to his parents' home, Leigh told Rucker that he was going to

"run in here and see if I can get some money from my parents." Leigh and Rucker went

inside, and Leigh asked his mother, "Mama, you got some money that my friend can

borrow?" Leigh's mother said she did not have any money. Leigh told Rucker that he

would get some from his father, and they left the house.

{¶ 9} Leigh's mother, Patricia Leigh, testified that her son was acting nervous and

she "knew something was wrong." As Leigh and Rucker left the house, she looked out the

front window and saw Rucker holding a gun down by his leg. Mrs. Leigh told her

granddaughter (Leigh's niece) to call the police.

{¶ 10} Outside, a neighbor across the, street asked Leigh if he could have a


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cigarette. After Leigh responded to the neighbor, Mrs. Leigh came out of her house and

asked how much money was needed. Rucker responded that he needed a "stack,"

meaning $1,000. Mrs. Leigh heard Rucker ask Leigh, "Do you want me to get your

mama?" Leigh waved to his mother to get inside and yelled, "Shut the door." Mrs. Leigh

went back into the house, and Leigh "took off running" through yards in the neighborhood.

Rucker pursued him. Mrs. Leigh called the police on her cell phone and, as she talked, got

into her car to try to locate her son.

{¶ 11) A few blocks away, Leigh noticed a vehicle with its trunk open in the

driveway of one home. Believing that someone might be home, Leigh ran to the front

screen door of that house and tried to get inside, but the door was locked. He continued

running, knocking off the homeowner's mailbox "so they could hear some kind of ruckus

outside." Leigh attempted to jump the chainlink fence to the next yard, but his pant leg got

caught and he fell over the fence and onto the ground.

(112) Reginald Lewis, the owner of the home that Leigh had tried to enter, came

out of his house. He saw a man (Leigh) on his knees in Lewis's neighbor'slyard while

another man (Rucker) pointed a 9mm or.45 caliber handgun at Leigh. Lewis did not know

either individual. Lewis heard Leigh begging Rucker, "Please don't do this," and saw

Rucker hit Leigh in the face with the gun. Rucker then "trotted" down the street. Lewis saw

Rucker put the gun in his pants as he went up the street. Leigh saw Lewis and asked to

borrow Lewis's cell phone. As he attempted to call his parents, Leigh saw his mother

driving her car up the street. Leigh got into the car, and Mrs. Leigh drove them home.

(113) Deputy Penelope Vo received a report that "a light-skinned black male [was]

being chased by a dark-skinned black male." The dispatcher relayed that the suspect was


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wearing a red polo shirt and blue jeans shorts and was carrying a black handgun; the victim

was also reportedly wearing a red shirt and blue pants. Vo was dispatched to an

intersection in Leigh's neighborhood.

(114) While en route, Deputy Vo saw a shirtless black man in blue jean shorts'and

carrying something red running in an overgrown field a few blocks from Lewis's house.

She broadcasted to other officers, "I see this gentleman running." Vo drew her firearm,

intercepted Rucker in the field, and ordered him to the ground. Rucker complied. Deputy

Joseph Caito drove up into the field, handcuffed Rucker, patted him down, and placed him

in a cruiser. Caito collected Rucker's personal property, including two bundles of money

(one of which was a stack with $18) and a cell phone, and placed the items on the cruiser's

front passenger seat. No handgun was found. After Caito and Vo briefly searched the

field for the handgun, Caito drove Rucker to the Leighs' home, where Leigh identified

Rucker as the perpetrator. At trial, Leigh, Mrs. Leigh, and Lewis identified Rucker as the

perpetrator, and all stated that Rucker had a gun.

(115) Rucker testified on his own behalf and presented three witnesses. Rucker

testified that he was a student at Miami Jacobs College, and that he met Leigh at Citizen

Mart a couple of weeks before June 23, 2010. Rucker testified that he had sold Leigh a

little less than one-half ounce of marijuana, worth $50, on credit. At that time, Rucker had

gotten Leigh's cell phone number and learned that Leigh was a trucker.

{¶ 16} Rucker testified that on June 23, 2010, he picked up his friend, Jere

Chappel, at Chappel's place of employment, and the two men drove around together.

They eventually went to Citizen Mart. While there, Rucker saw Leigh sitting in a car.

Rucker approached Leigh and asked him for his mo.ney. Rucker testified that Leigh gave


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him the $18 that he had and invited Rucker to come with him to his parents' home. Rucker

described Leigh's asking his mother for money and stated that a neighbor asked Leigh for

a cigarette. Rucker testified that Mrs. Leigh came onto her front porch and spoke with

Leigh. When Rucker turned his attention back to Leigh, Leigh was running away from him.

Rucker acknowledged that he followed Leigh briefly, but denied going onto the street

where Lewis lived. Rucker denied that he had a gun or had ever pointed a gun at Leigh.

{¶ 17) Chappel testified that he drove around with Rucker in Rucker's truck

beginning at 2:00 p.m. on June 23, 2010, and they eventually went to Citizen Mart.

Chappel stated that he stayed in Rucker's truck while Rucker went into the store. When

Rucker got out of the store, he went over to Chappel and told him that he would be "right

back." Chappel saw Rucker leave in a car. Chappel continued to wait in Rucker's truck.

Approximately ten to fifteen minutes later, Rucker called Chappel and told Chappel that he

(Rucker) was going to jail and that Chappel should take his truck home.

(118) Joe Anderson, the Leighs' neighbor, testified that he saw Leigh and another

man on June 23, 2010, and that he got a cigarette from Leigh. Anderson did not see what

happened after he obtained the cigarette. Rucker's sister testified that Rucker has a

reputation as an honest, non-violent person. On cross-examination, she stated that she

was not aware of Rucker's arrest for burglary in 2007.

(119) The State called Dayton Police Officer Aaron Fraley as a rebuttal witness.

Fraley testified that Rucker had told him that he (Rucker) had met Leigh previously and that

Rucker had approached Leigh to ask if he (Leigh) knew where to get marijuana. Fraley

further testified that Rucker admitted to "chasing" Leigh through the neighborhood, but that

Rucker stated that he was carrying his cell phone rather than a handgun.


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{¶ 20} Rucker was indicted with aggravated robbery and kidnapping, each with a

firearm specification. A jury convicted him of both counts, and he was sentenced to an

aggregate term of seven years in prison.

II.

(121) Rucker's first assignment of error states:

THE TRIAL COURT ERRED IN OVERRULINGAPPELLANT'S MOTION TO

SUPPRESS.

(122) In his first assignment of error, Rucker claims that the trial court erred in

denying his motion to suppress the "live identification" of him by the one of the alleged

victims. He claims that the police officers lacked a reasonable suspicion of criminal activity

at the time he was stopped and that the officers lacked probable cause to arrest him. He

now claims that the pre-trial identification resulted from the unlawful seizure and should

have been suppressed.

(123) Shortly before trial, Rucker moved to suppress the pre-trial identification on

the ground that the identification procedures were unduly suggestive and conducive to

irreparable mistaken identification. The court held a hearing on the motion, at which

Deputies Vo and Caito testified. At the conclusion of the hearing, the trial court overruled

Rucker's motion, finding that "there is no evidence of any undue suggestibility associated

with the show-up, other than the circumstances inherent in a show-up circumstance in and

of itself of having the Defendant present in the back of *** a cruiser."

(124) As noted by the State in its brief, Rucker did not argue in the trial court that

the identification should be suppressed on the ground that his stop and detention were

unlawful. Accordingly, Rucker has waived this argument on appeal. However, we will


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discuss this issue in more detail under Rucker's fifth and six assignments of error, where

he argues ineffective assistance of counsel.

(125) Rucker's first assignment of error is overruled.

Ill.

(126) Rucker's second assignment of error states:

THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT.

(127) In his second assignment of error, Rucker claims that the prosecutor

engaged in misconduct when he ( 1) asked the victim and the victim's mother about how

their lives were affected by the alleged robbery and kidnapping and (2) told the jury during

closing argument, "We do not reward defendants for getting rid of the gun. We don't do

it."

(128) In reviewing claims of prosecutorial misconduct, the test is whether the

prosecutor's remarks were improper and, if so, whether those comments prejudicially

affected the substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420,

739 N.E.2d 300 (2000). "The touchstone of analysis ' is the fairness of the trial, not the

culpability of the prosecutor."' Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct

940, 71 L.Ed.2d 78 (1982). Where it is clear beyond a reasonable doubt that the jury

would have found the defendant guilty, even absentthe alleged misconduct, the defendant

has not been prejudiced, and his conviction will not be reversed. See State v. Underwood,

2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.

Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).


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{¶ 29} Rucker did not object to the prosecutor's statement during closing argument

or to the questions posed to Leigh and his mother concerning how the offenses affected

them. Consequently, we review them for plain error. Plain error may be noticed if a

manifest injustice is demonstrated. Crim.R. 52(B); State v. Lewis, 2d Dist. Montgomery

No. 23850, 2011-Ohio-1411, ¶ 54. In order to find a manifest miscarriage of justice, it must

appear from the record as a whole that but for the error, the outcome of the trial clearly

would have been otherwise. Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978).

{¶ 30) Rucker argues that the prosecutor's statement, "We do not reward

defendants for getting rid of the gun. We don't do it," was an improper statement of the

prosecutor's personal belief or opinion. We have previously addressed a similar comment

by the prosecutor regarding the absence of a firearm, stating:

[T]he State correctly asserts - and the prosecutor correctly stated

during voir dire - that the prosecution was not required to produce the

weapon in orderto prove the firearm specifications: Circumstantial evidence

and direct evidence have equivalent probative value. Consequently, the

State could prove the firearm specification solely on the basis of

circumstantial evidence; the prosecutor could have reasonably informed the

prospective jurors of that fact.

However, the prosecutor's proffered reason for not requiring the

weapon to be produced, i.e., that "we don't reward people for shooting

someone and getting rid of a firearm," was objectionable. Lewis was not

charged with tampering with evidence, and no evidence was submitted at


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trial to support the contention that Lewis "got rid of' or "concealed or

destroyed" the firearm. The mere fact that the gun was not recovered at the

scene is insufficient to establish tampering with evidence. Nevertheless, in

this case, the felonious assault and murder offenses arose out of the

shooting death of [the victim]; there was overwhelming evidence that an

operable firearm was used in the commission of the offenses. Accordingly,

we find the prosecutor's statements to be harmless beyond a reasonable

doubt.

(Citations omitted.) Lewis at ¶ 45-46.

(131) Here, the prosecutor stated during his closing argument, "Remember, just

because the gun is not here today doesn't mean you cannot say the words guilty for a gun

crime. We do not reward defendants for getting rid of the gun. We don't do it." This

statement might be better characterized as an improper comment on the evidence rather

than an improper statement of the prosecutor's personal opinion or belief. Regardless of

the characterization, for the reasons we expressed in Lewis, the prosecutor's statement

was objectionable.

(132) Nevertheless, we find that the prosecutor's statement was harmless beyond

a reasonable doubt. Before the offending statement, the prosecutor detailed the evidence

that had been presented about Rucker's possession of a gun. Three witnesses - Leigh,

Leigh's mother, and Lewis - all testified that they saw Rucker with a gun, and both Leigh

and Lewis described the gun for the jury. Most notably, Lewis, who had no prior

relationship with any of the parties, testified that he saw Rucker pointing a 9mm or .45

caliber gun at Leigh and hit Leigh in the face with the gun. Upon reviewing the trial as a


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whole, we conclude that the prosecutor's statement was harmless beyond a reasonable

doubt.

{¶ 33) Rucker further argues that the prosecutor's questions to Leigh and Leigh's

mother regarding howthey have been affected by Rucker's actions amountto prosecutorial

misconduct. In response to the prosecutor's questions, Leigh testified that he lost his

"dedicated run" with the trucking company due to the many court appearances concerning

this case. Leigh's mother testified that she now keeps the doors of her home locked, which

she did not previously do, and she has a baseball bat by the door. She also testified that

she no longer feels safe inside her home.

{¶ 34) Victim-impact evidence is admissible in certain circumstances, such as when

the evidence relates to both the facts attendant to the offense and the effect on the victim.

State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 138, citing State

v. Fautenbeny, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995). In this case, however, the

prosecutor's questions regarding the effects that the crimes had on Leigh and his mother

were not relevant to Rucker's guilt or innocence, and the only apparent purpose for those

questions was to elicit sympathy for the victims. Nevertheless, the prosecutor did not dwell

on the impact of the crimes on the victims, either during questioning or in closing argument.

Given the overall context of the trial, we find no basis to conclude that these limited

questions affected the outcome of the trial

(135) Rucker's second assignment of error is overruled.

1. ,

iv.

(136) Rucker's third assignment of error states:

THE TRIAL COURT IMPROPERLY ANSWERED A JURY QUESTION


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DURING DELIBERATIONS WITHOUT COUNSEL PRESENT.

(137) In his third assignment of error, Rucker claims that the trial court erred when

it answered a question by the jury during its deliberations outside of his presence and

without affording his attorney an opportunity to object or offer input on how the question

should be answered.

{138} The trial transcript reflects that around 11:20 a.m. on the second day of

deliberations, the jury sent the court, through the bailiff, a written question, which asked,

"Does kidnapping have an end point? Is it the mothers [sic] house[?] Can the kidnapping

charge include the cycle of Citizen's Mart [to] James' house [to] Mr. Lewis's house[?] In

other words, can we consider that James was not 'released' of his constraint until he left

Lewis's house[?]" The court attempted to contact counsel, but was only able to reach the

prosecutor. At 11:45 a.m., without consulting with either of the attorneys regarding the

jury's question, the court answered the question, in writing, as follows: "Focus on action,

if you find it occurred. Look at page 7, Count II of the instructions[.]" (Emphasis in

original.) Count II was the court's written instruction on kidnapping, which was located on

page 7.

{'¶ 39} At approximately 11:50 a.m., defense counsel came to the court. The

prosecutor was contacted, and the court retrieved the jury's question and the written

answer from the jury. The questiori was then discussed with the attorneys, who had

different views on how the question should have been answered. (Rucker's presence was

waived by hiS counsel for purposes of this d!scussion.) The prosecutor indicated that he

did not believe that the court's response answered the jury's question, but he did not

believe the answer itself was wrong. The prosecutor stated that the proper answer to the


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jury's question as to whether it could "consider that James was not 'released' of his

constraint until he left Lewis's house" was "yes." The prosecutor further suggested that the

court add "regardless of duration" to its answer.

(140) Defense counsel also objected to the court's answer, stating that the court

should have simply referred the jury to its collective memory for the factual issue and

provided a reference to the legal instructions on the definition of kidnapping. Defense

counsel further objected to the court's answering the jury's question without consulting with

counsel, and he requested a mistrial due to both the court's answer and the procedure it

followed. The court denied the motion for a mistrial, and it ruled that it would not change

the answer that it had previously given to the jury. The answer was returned to the jury

without modification.

{¶ 41} As an initial matter, a criminal defendant has a right pursuant to the

Fourteenth Amendment to be present at every "critical stage" of his trial. State v.

Campbell, 90 Ohio St.3d 320; 346, 738 N.E.2d 1178 (2000), citing Snyder v.

Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). See also Crim.R. 43.

"The question is whether 'his presence has a relation, reasonably substantial, to the

fullness of his opportunity to defend against the charge."' Campbell at 346, quoting Snyder

at 105-106.

(142) "As a general rule, any communication between judge and jury that takes

place outside the presence of the defendant or parties to a case is error which may warrant

the ^.rder;ng of a new trial. Such communications are required to be made in the presence

of the defendant or parties so that they may have an opportunity to be heard or to object

before the judge's reply is made to the jury." (Citations omitted.) Bostic v. Connor, 37 Ohio


14

St.3d 144, 149, 524 N.E.2d 881 (1988).

(143) Nevertheless, when defense counsel is present, a defendant's constitutional

rights are not violated when he is absent during the conference regarding the court's

response to the jury's question. State v. Everette, 2d Dist. Montgomery No. 22838, 2009-

Ohio-5738, ¶ 15, citing, e.g., Campbell at 346. And "[a]lthough the oral delivery of jury

instructions is a critical stage of a trial, a trial court's written response to a jury question

seeking to clarify those instructions is not." State v. Martin, 2d Dist. Montgomery No.

22744, 2009-Ohio-5303, ¶ 10, citing Campbell at 346.

(144) In this case, the trial court erred by engaging in a communication with the

jury, without first providing counsel an opportunity to be heard or to object. "Such private

communication outside the presence of the defendant does not, however, create a

conclusive presumption of prejudice. The communication must have been of a substantive

nature and in some way prejudicial to the party complaining." (Citations omitted.) State

v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). For example, when the trial court's

response merely reiterates the same instruction that the jury originally received, the

improper ex parte communication is harmless. State v. Abrams, 39 Ohio St.2d 53, 56,

313 N.E.2d 823 (1974).

(145) As stated above, the trial court's communication with the jury concerned a

question from the jury regarding the duration of the kidnapping. The trial court responded,

in writing, telling the jury to "focus on action, if you find it occurred" and to review the jury

instruction on kidnapping, which was located on page 7 of the written instructions. The

court did not expressly tell the jury, as requested by defense counsel, to rely on its

collective memory as to what had occurred and to apply its findings to the instructions


15

previously provided by the court, but the trial court's written response was, in essence,

such an instruction. The court did not answer the jury's question as to whether kidnapping

had an endpoint, and it did not provide any supplemental instruction on the relevant law

or how to apply the facts to the law previously provided. Moreover, the answer given to the

question was the same both before and after hearing from the attorneys. Because the trial

court's response essentially reiterated the instructions previously provided, albeit not in the

same words, we conclude that the court's erroneous communication with the jury during

deliberations was harmless.

(146) The third assignment of error is overruled.

V.

{¶ 47} Rucker's fourth assignment of error states:

THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT'S

CONVICTIONS AS ALLIED OFFENSES OF SIMILAR IMPORT.

(1481 Rucker's fourth assignment of error asserts that the trial court erred in failing

to merge his aggravated robbery and kidnapping convictions as allied offenses of similar

import. At sentencing, the trial court told Rucker that it had "considered whether or not

these were allied offenses [of] similar import, and did the review and the analysis under

State v. Williams. The Court believes these are not allied offenses of similar import."

(149) R.C. 2941.25 addresses the issue of merger and provides: -

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.


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(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

(150) The Ohio Supreme Court's test for determining when offenses are allied

offenses of similar import that must be merged pursuant to R.C. 2941.25 was set forth in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The supreme

court held that, "[w]hen determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered." ld. at syllabus. It explained:

Under R.C. 2941.25, the court must determine prior to sentencing

whether the offenses were committed by the same conduct. Thus, the court

need not perform any hypothetical or abstract comparison of the offenses at

issue in order to conclude that the offenses are subject to merger.

In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one

offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other. * * * If the offenses

correspond to such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other, then the

offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then


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the court must determine whether the offenses were committed by the same

conduct, i.e., "a single act, committed with a single state of mind." * * *

If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each

offense, then, according to R.C. 2941.25(B), the offenses will not merge.

(Citations and quotations omitted.) Johnson at ¶ 47-51.

{¶ 51} A defendant who argues on appeal that the trial court erred by not merging

multiple offenses bears the burden to show that the offenses are allied pursuant to R.C.

2941.25. State v. Hale, 2d Dist. Clark No. 11 CA 33, 2012-Ohio-2662, 124.

{¶ 52} The Ohio Supreme Court has recognized thatthe commission of aggravated

robbery necessarily involves the restraint of the victim. See State v. Jenkins, 15 Ohio St.3d

164, 198, 473 N.E.2d 264 (1984), fn. 29 (kidnapping is implicit within every aggravated

robbery). However, aggravated robbery and kidnapping are not always allied offenses of

similar import. A separate animus for kidnapping exists where (1) "the restraint is

prolonged, the confinement is secretive, or the movement is so substantial as to

demonstrate a significance independent of the other offense," or (2) "the asportation or

restraint of the victim subjects the victim to a substantial increase in risk of harm separate

and apart from that involved in the underlying crime." State v. Logan, 60 Ohio St.2d 126,

397 N.E.2d 1345 (1979), syllabus.

{¶ 53) Here, Leigh's restraintwas prolonged, createda substantial risk of harm, and


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involved substantial movement from the Citizen Mart store, where Leigh initially

encountered Rucker. Rucker ordered Leigh, at gunpoint, to "drive" and take him to the

money. Leigh's restraint continued after Leigh gave Rucker his wallet; Rucker told him to

go to an ATM and to his truck, and he threatened and hit Leigh with his weapon when

Leigh tried to grab the gun. Rucker continued to restrain Leigh with his gun while Leigh

drove to his parents' home and Leigh attempted to obtain money from his mother. After

Leigh ran away from Rucker, Rucker again restrained Leigh's movements at Lewis's home,

where Rucker threatened and assaulted Leigh with his weapon.

{¶ 54) Given the facts of the case, the trial court found that Rucker acted with a

separate animus when he engaged in the kidnapping. We find no fault with the trial court's

conclusion.

(155) The fourth assignment of error is overruled.

VI.

{¶ 56) Rucker's fifth and sixth assignments will be addressed together. They read:

APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

OBJECT TO THE PROSECUTOR'S ASKING OF IRRELEVANT QUESTIONS

WHICH WERE PREJUDICIAL TO APPELLANT.

APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

RAISE ALL OTHER MERITORIOUS ISSUES PRESENTED ABOVE.

(157) In his fifth and sixth assignments of error, Rucker claims that his trial counsel

acted deficiently by failing to object to the prosecutor's victim-impact questions, the

prosecutor's closing argument, and to the court's failure to merge his offenses as allied

offenses of similar import. He also claims that his trial counsel should have moved to


19

suppress his clothing and the live identification of him.

(168) We review the alleged instances of ineffective assistance of trial counsel

underthe two prong analysis setforth in Strickland v. Washington, 466 U.S. 668,104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel

is entitled to a strong presumption that his or her conduct falls within the wide range of

reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on

ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell

below an objective standard of reasonableness and that counsel's errors were serious

enough to create a reasonable probability that, but for the errors, the result of the trial

would have been different. Id. Hindsight is not permitted to distort the assessment of what

was reasonable in light of counsel's perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).

{¶ 59) The "failure to file a suppression motion does not constitute per se ineffective

assistance of counsel." State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000),

quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305

(1986). Rather, trial counsel's failure to file a motion to suppress constitutes ineffective

assistance of counsel only if the failure to file the motion caused the defendant prejudice;

that is, when there is a reasonable probability that, had the motion to suppress been filed,

itwould have been granted. State v. riovvard, 2d Dist. ^non#go^;;ery No. 23795, 2011-Ohio-

27, ¶ 22, citing State v. Wilson, 2d Dist. Clark No. 08 CA 445, 2009-Ohio-2744, 111.

{¶ 60) As previously discussed, the prosecutor's victim-impact questions and the


20

prosecutor's closing argument, although improper, did not affect the outcome of Rucker's

trial. Consequently, we cannot conclude that Rucker was prejudiced by his counsel's

failure to object to the prosecutor's conduct. In addition, we have concluded that the trial

court did not err in failing to merge Rucker's offenses as allied offenses of similar import.

Accordingly, Rucker's counsel did not act deficiently by failing to object to the court's

imposition of sentence on both of Rucker's offenses.

(161) With respect to the motion to suppress, Rucker argues that his counsel

should have argued in a motion to suppress that he was seized unlawfully and therefore

the show-up identification by Leigh, which occurred during that seizure, should have been

suppressed.

(162) The testimony of Deputies Vo and Caito at the suppression hearing revealed

the following facts:

(163) At approximately 6:08 p.m. on June 23, 2010, Deputies Vo and Caito both

heard a dispatch that a "dark-skin, black male," who was wearing a red polo shirt and blue

jean shorts and carrying a black handgun, was chasing a "light-skin black, male" in a red

shirt and blue jeans. Vo indicated that the dispatcher had received several calls, including

a call from the victim's niece and an identified witness on a nearby street. Vo understood

that the incident was "in progress," and the deputies were provided an intersection where

they were to go to locate the perpetrator. Both deputies headed toward that location in

separate marked cruisers.

(164) As Deputy Vo approached the area, she saw a "dark-skinned, biack male

[with] no shirt on", who was wearing blue shorts and carrying a "red object," running into

an overgrown vacant lot. Vo parked her cruiser, approached the man (Rucker), and


21

ordered him at gunpoint to get on the ground. Vo saw that the man was carrying a red polo

shirt; she did not see a handgun or another person being chased. As the man was getting

onto the ground, Deputy Caito drove up in his cruiser, handcuffed the man, and put him

in his cruiser.

(165) Deputies Vo and Caito briefly looked around the lot for the missing handgun.

Vo then "backtracked the steps" that she had seen Rucker running, while Caito took

Rucker to the victim's home. Caito parked near the victim's home and approached

Sergeant Statzer, who was standing just inside the victim's front door. Caito asked Statzer

to step outside with him. Caito then informed Statzer that "the subject that Deputy Vo had

located was in the back of my car, and [he] asked [Statzer] if he wanted to do a live ID on

that subject." Within a few seconds, Statzer "got the victim from the house," and told him,

"We have a subject in the back of the car we'd like you to take a look at, see if you

recognize them." Statzer and the victim came within two feet of Caito's cruiser, the victim

looked in the back window, and the victim stated without hesitation, "That's him. That's the

guy." (At that time, Rucker's red shirt was on the seat next to him.) The victim then went

back into his house.

(166) Rucker does not now challenge the trial court's conclusion that the show-up

identification by Leigh was not unduly suggestive. Rather, his argument turns on whether

the deputies properly detained him and brought him to Leigh's residence for the

identification.

(167) The Fourth Amendmentto the United States Constitution protects iridividuais

from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or temporarily detain


22

individuals in order to investigate possible criminal activity if the officers have a reasonable,

articulable suspicion that criminal activity may be afoot. State v. Martin, 2d Dist.

Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry. We determine the existence

of reasonable suspicion by evaluating the totality of the circumstances, considering those

circumstances "through the eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold." State v. Heard, 2d Dist. Montgomery No. 19323,

2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d

1271 (1991). The officer must have more than an inchoate hunch or suspicion to justify

an investigatory stop.

(168) In this case, we cannot conclude that Rucker's counsel acted deficiently by

failing to challenge the show-up identification on the ground that Rucker's seizure by the

police, prior to the identification, was unlawful. The deputies' testimony at the suppression

hearing established that they were responding to several reports that a man in a red polo

shirt and blue shorts and carrying a black handgun was currently chasing another man.

The deputies responded immediately, and when Deputy Vo was within a few blocks of the

intersection reported in the dispatch, she saw Rucker, who matched the physical

description, running in a vacant field and heading away from the reported location. Rucker

was wearing blue jeans and Deputy Vo could see that he was carrying something red in

his hands. All of these facts (e.g., the timing and location of the encounter and the

suspect's description), when considered together, created a reasonable suspicion that

Rucker was the person who had chased another man with a gun, as reported in the

dispatch. Deputies Vo and Caito were thus entitled to stop and detain Rucker to

investigate that reported criminal activity.


23

{¶ 69} It is arguable that the deputies' conduct at the vacant field may have placed

Rucker in custody in the absence of probable cause to arrest him. Nevertheless, the

officers had sufficient information to create a reasonable suspicion that Rucker was the

perpetrator of the crimes against Leigh, and they were therefore entitled to detain him to

investigate that possibility. As part of that detention, the officers were permitted to

transport Rucker to Leigh's residence for a show-up identification. Based on the record

before us, we cannot conclude that Ruckerwould have prevailed on his motion to suppress

based on an unlawful detention had Rucker's counsel presented such a motion in the trial

court.

(170) Finally, Rucker argues that his attorney should have moved to suppress his

clothing. The record contains no testimony as to when Rucker's clothing was seized, but

we infer from the evidence at the suppression hearing that his clothing was taken after the

show-up identification. At that juncture, there was probable cause to arrest Rucker, and

we can find no basis in the record to conclude that counsel would have prevailed had he

filed a motion to suppress the seizure of Rucker's clothing.

(171) Rucker's fifth and sixth assignments of error are overruled.

VII.

(172) The trial court's judgment will be affirmed.

GRADY, F.J., concurs.

HALL, J., concurring:

{¶ 73) I agree with all the reasoning in the lead opinion except whether the


24

prosecutor's argument "We do not reward defendants for getting rid of the gun. We don't

do it" is objectionable as an improper comment on the evidence or an improper statement

of personal opinion. I don't believe it is either.

(174) The defendant was apprehended a few blocks from where he had committed

the aggravated robbery with a firearm a few minutes earlier. He did not have a firearm in

his possession upon arrest. It was reasonable for the jury to infer, and for the prosecutor

to comment, that he had gotten rid of the gun.

{¶ 75) I also don't agree that the quoted comment is an improper statement of

personal opinion. The Supreme Court of Ohio has held that a prosecutor may express his

personal opinion in closing arguments if he bases that opinion on the evidence presented

in court. See State v. Keenan, 66 Ohio St.3d 402, 408, 613 N.E.2d 203 (1993). Whatwas

found objectionable in Keenan was the prosecutor's personal comments about "his own

emotions and the fervor with which he believed in Keenan's guilt." Id. Here, I don't

interpret the quoted statement as personal opinion at all.

(176) 1 am concerned however that the quoted statement is objectionable to the

extent that it uses the word "We." Imploring the jury not to reward the defendant for getting

rid of the gun is a powerfully crafted argument. But using the word "we" in the sentences

suggests that the jury should become part of the prosecution team and convict the

defendant because of a sense of common righteousness.

{¶ 77) I agree, nevertheless, whether objectionable or not, the prosecutor's

statement was harmless beyond a reasonable doubt. I therefore concur in affirming the

judgment of the trial court.


IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee

V.

SIDNEY L. RUCKER, II

C.A. CASE NO. 24340

T.C. NO. 10CR1986

FINAL ENTRY

Defendant-Appellant

Pursuant to the opinion of this court rendered on the 19thday of October , 2012,

the judgment of the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App. R. 30(A), it is hereby ordered that the Clerk of the Montgomery

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

THOMAS J. G , Presi i g Judge

^trr audge^rrr

7W -FRO

ELI C'r-i' , 1

MICHAEL T. HALL, Judge


r eflw - ohio supreme courttake off ronning away from the defendant. transcript page 260. further,...

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