        [Cite as State v. Thompkins, 2017-Ohio-1061.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :      APPEAL NO. C-160384
                                                        TRIAL NO. B-1503766
    Plaintiff-Appellee,                          :

  vs.                                            :        O P I N I O N.

DEVONTE THOMPKINS,                               :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 24, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Defendant-appellant Devonte Thompkins appeals from the judgment

of the Hamilton County Common Pleas Court convicting him of two counts of

aggravated robbery and a firearm specification. He was convicted after a bench trial.

Finding no merit to his assignments of error, we affirm the trial court’s judgment.

                                 Background Facts


       {¶2}   As she worked the night shift at the front desk of a hotel, Janet Lawson

noticed two juveniles and a man sitting at a bus stop across the street. After a while,

the juveniles came into the hotel to ask if their mother was there. Lawson noticed

that they were looking around at the security cameras and she asked them to leave.

       {¶3}   A few hours later, Lawson heard the hotel’s front door slam open and

saw the two juveniles leap toward her over the front desk. One held a gun to her

head as they demanded money. Lawson believed the gun was real because she heard

the juvenile “rack” it. While that person followed her at gunpoint to the back room

and stole her cell phone, the other person leaned over the front desk to look back

toward the front door, where the third individual was standing.         The juveniles

grabbed the money from the hotel’s cash register, leaped back over the desk, and ran

out the front door.

       {¶4}   A police officer responding to the incident went directly to the Gateway

Plaza, a two-building apartment complex located at the opposite end of a footbridge

from the hotel. Security footage at Gateway Plaza showed three males, an adult and

two juveniles, leave the property’s garage and walk westbound toward the hotel. The

three males matched the descriptions of the robbery suspects.



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       {¶5}   The officer then reviewed the hotel’s security footage and recognized

the robbers as the juveniles he had seen with the adult on the Gateway Plaza security

footage. Shortly thereafter, a Gateway Plaza security guard called to inform the

officer that one of the juveniles had just entered an apartment at the complex.

       {¶6}   When police officers went to that apartment, Thompkins answered the

door and acknowledged that it was his apartment. Thompkins denied that anyone

else was in the apartment, other than his sleeping baby girl. However, at an officer’s

request for individuals inside the apartment to identify themselves, the juveniles who

had robbed the hotel came out of the apartment. The juveniles were 16-year-old I.G.

and 14-year-old T.M.

       {¶7}   A search warrant for Thompkins’s apartment was obtained and

executed. Police found the hotel clerk’s cell phone in Thompkins’s bedroom, lodged

between his mattress and box spring. They found the hotel’s cash stuffed under

some clothing inside a bag in his bedroom closet. They found a gun holster and a

box of ammunition in the living room.

       {¶8}   Thompkins was indicted for two counts of aggravated robbery with

firearm specifications and two counts of robbery, related to thefts of property from

the hotel and from the hotel clerk.

       {¶9}   At trial, I.G. testified that he and T.M. met Thompkins at Gateway

Plaza, where they decided that Thompkins would act as a lookout while I.G. and T.M.

ran in to rob the hotel. According to I.G., he and T.M. ran to Thompkins’s apartment

after the robbery. When Thompkins got back to the apartment, the three of them

counted the money from the robbery before the police arrived.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Thompkins testified that he, T.M., and I.G. walked to the gas station

across the street from the hotel. He said that T.M. told him that he was going to the

hotel to see his mother. According to Thompkins, he stood outside the hotel while

T.M. and I.G. went inside, because he was smoking a cigar, “and you can’t smoke in

the building at all.” He said that the juveniles came running out of the hotel and ran

back towards the Gateway Plaza.

       {¶11} Thompkins testified that when he saw them running away, “I was

thinking why they running? Like I was thinking, well, they young, so they probably

running. I don’t know. But I started to head home * * *. That’s the same way they

ran, so I just walked away.”

       {¶12} Thompkins said that T.M. and I.G. were at his apartment when he

returned. He said that they showed him cash and told him that they had just robbed

the hotel. According to Thompkins, he told them to leave and began to argue with

them just as the police arrived. He claimed that he had immediately told police that

four or five people were in the apartment. Thompkins acknowledged that he did not

tell the police that T.M. and I.G. had just robbed the hotel, but Thompkins asserted,

he did not “have a chance to. * * * It all happened so fast.”

       {¶13} At the conclusion of the trial, the court found Thompkins guilty as

charged.   The court merged the robbery counts with the respective aggravated-

robbery counts and merged all the firearm specifications into one specification. The

court imposed concurrent six-year prison sentences for the two aggravated-robbery

convictions, and a consecutive three-year prison term for the firearm specification.

Thompkins now appeals.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                  The Prosecutor’s Use of Impeachment Evidence


       {¶14} In his first assignment of error, Thompkins argues that the trial court

erred by permitting the state to impeach its own witness with a prior inconsistent

statement. He concedes that he failed to object to the impeachment, so he has

forfeited all but plain error. See State v. Neal, 1st Dist. Hamilton No. C-140667,

2015-Ohio-4705, ¶ 45.

       {¶15} To demonstrate plain error, an appellant must show that an error

occurred, that the error was an obvious defect in the trial proceedings, and that the

error affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, 873 N.E.2d 306, ¶ 16, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

       {¶16} Under Evid.R. 607(A), a party may attack its own witness’s credibility

with a prior inconsistent statement only upon a showing of surprise and affirmative

damage. State v. Hancock, 1st Dist. Hamilton No. C-030459, 2004-Ohio-1492, ¶ 36.

Surprise exists where a witness’s testimony materially differs from a prior statement

and counsel had no reason to believe that the witness would recant at trial. State v.

Holmes, 30 Ohio St.3d 20, 23, 506 N.E.2d 204 (1987).            The determination of

surprise is left to the trial court’s sound discretion. Hancock at ¶ 37; State v. Diehl,

67 Ohio St.2d 389, 391, 423 N.E.2d 1112 (1981). Affirmative damage occurs where a

witness testifies to facts that contradict, deny, or harm the party’s trial position.

State v. Seay, 1st Dist. Hamilton No. C-040763, 2005-Ohio-5964, ¶ 43.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} As an initial matter, we note that there is some confusion in the record

between references to Thompkins’s apartment complex (Gateway Plaza) and his

actual apartment within that complex. The prosecutor asked I.G., “This apartment,

at the Gateway Plaza that you were arrested in, had you ever been there before?” I.G.

responded, “No, sir.” Believing that I.G. had given a contradictory statement to

police, the prosecutor used his prior statement to impeach him. I.G. had told the

officers that on that night prior to the robbery he had been at Devonte Thompkins’s

house. This constituted surprise, and had Thompkins objected, the court would not

have abused its discretion in finding surprise and affirmative damage. See Holmes at

23.

       {¶18} It appears from the way the testimony developed that I.G. was making

a distinction between the apartment complex and the apartment, and that his trial

testimony, when clarified, did not contradict his statement to the officers.

       {¶19} Thompkins argues that the trial court’s admission of the impeachment

evidence was plain error because I.G.’s prior statement was more damaging to his

defense than I.G.’s trial testimony. Upon further questioning, I.G. clarified that he

had not been inside Thompkins’s apartment before the robbery.             Instead, I.G.

recounted that Thompkins had joined him and T.M. in a hallway within Thompkins’s

apartment complex. The use of the prior seemingly inconsistent statement led to

I.G.’s clarification that the three had not been inside Thompkins’s apartment before

the robbery. Thompkins has failed to demonstrate any error by the trial court in the

admission of the impeachment evidence. We overrule the first assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                         Ineffective Assistance of Counsel


       {¶20} In his second assignment of error, Thompkins argues that he was

denied the effective assistance of counsel. To prevail on an ineffective-assistance

claim, an appellant must demonstrate that his counsel’s performance was deficient,

and that, in the absence of counsel’s errors there is a reasonable probability that the

result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-

142, 538 N.E.2d 373 (1989). Our review of counsel’s performance must be “highly

deferential.” Strickland at 689.

       {¶21} Failing to object to the prosecutor’s use of impeachment evidence.

Thompkins asserts that counsel’s performance was deficient because he failed to

object to the prosecutor’s impeachment of I.G. However, as we have discussed, the

use of the statement for impeachment was not error. Moreover, as an experienced

trial attorney, defense counsel certainly was aware of the presumption that, in a

bench trial, the court considered only relevant, material, and competent evidence.

See State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987); Neal, 1st Dist.

Hamilton No. C-140667, 2015-Ohio-4705, at ¶ 49.

       {¶22} Eliciting damaging testimony on cross-examination.            Thompkins

contends that defense counsel’s cross-examination of I.G. elicited testimony that

Thompkins had been involved in planning the robbery. He claims that, upon direct

examination, I.G. had not implicated Thompkins in the planning. However, the

record does not support Thompkins’s assertion. On direct examination, I.G. testified

that he had met up with T.M. and Thompkins and that, on the evening of the

robbery, the three of them planned on “[g]etting some money” by “[r]obbing


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                       OHIO FIRST DISTRICT COURT OF APPEALS



something.” They decided that he and T.M. would go into the hotel “to get the

money” and that Thompkins would act as “just a lookout.” Thus, I.G. implicated

Thompkins in the robbery before cross-examination.

       {¶23} Thompkins also argues that defense counsel should not have asked

I.G. if Thompkins had gotten anything from the robbery, because it allowed I.G. to

respond that they were going to give him something:

              [Defense counsel]: Okay. Did [Thompkins] get any proceeds?

              [I.G.]: What’s that mean?

              [Defense counsel]: Did he get any of the stuff that was taken?

              [I.G.]: Yeah, we was going to.

              [Defense counsel]: Did he know that?

              [I.G.]: Yeah.

       {¶24} While this may have provided additional evidence of Thompkins’s

involvement, it was duplicative of I.G.’s testimony on direct examination (that the

three of them planned on getting some money). Therefore, we cannot say that

counsel’s cross-examination fell below an objective standard of reasonable

representation. See Strickland at 687-688; Bradley at 380. We overrule the second

assignment of error.

                       Weight and Sufficiency of the Evidence


       {¶25} In his third assignment of error, Thompkins challenges the weight and

sufficiency of the evidence upon which his convictions were based. He contends that

the state failed to prove that he was complicit in the aggravated-robbery offenses. He

does not dispute that the state otherwise proved the elements of the offenses.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. When considering a challenge to the weight of

the evidence, the court must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

       {¶27} The aggravated-robbery statute, R.C. 2911.01(A)(1), provides:

               No person, in attempting or committing a theft offense, as

               defined in section 2913.01 of the Revised Code, or in fleeing

               immediately after the attempt or offense shall * * * [h]ave a

               deadly weapon on or about the offender’s person or under the

               offender’s control and either display the weapon, brandish it,

               indicate that the offender possesses it, or use it.

       {¶28} To support a conviction for complicity by aiding and abetting, the

evidence must show that the defendant “supported, assisted, encouraged, cooperated

with, advised, or incited the principal in the commission of the crime, and that the

defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio

St.3d 240, 754 N.E.2d 796 (2001), syllabus; R.C. 2923.03(A)(2). Criminal intent

“ ‘may be inferred from presence, companionship, and conduct before and after the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



offense is committed.’ ” Johnson, quoting State v. Pruett, 28 Ohio App.2d 29, 34,

273 N.E.2d 884 (4th Dist.1971).

       {¶29} In this case, the trial court, as the trier of fact, was entitled to

disbelieve Thompkins’s version of the events and to believe I.G.’s testimony that

Thompkins had acted as the lookout in the robbery. Therefore, the convictions were

not against the manifest weight of the evidence and were supported by sufficient

evidence. We overrule the third assignment of error.

                                     Sentencing


       {¶30} In his fourth assignment of error, Thompkins argues that his sentences

are contrary to law because the trial court failed to consider the purposes and

principles of sentencing, and failed to merge his convictions for aggravated robbery.

Under R.C. 2953.08(G)(2), this court may vacate or modify a sentence only if we

clearly and convincingly find that the record does not support the mandatory

sentencing findings or that the sentence is otherwise contrary to law. See State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231; State v. White, 2013-

Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶31} Consideration of the relevant sentencing factors.       The overriding

purposes of felony sentencing are to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that

the court determines accomplish those purposes without imposing an unnecessary

burden on state or local government resources. R.C. 2929.11(A). In sentencing a

felony offender, a court must consider these purposes, as well the seriousness and

recidivism factors set forth in R.C. 2929.12. R.C. 2929.12(A).



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32} In this case, the trial court explicitly considered the purposes of felony

sentencing, as well as the seriousness of the offenses and the likelihood that

Thompkins would reoffend. The court noted that Thompkins was 21 years old,

unemployed, and had a juvenile adjudication for breaking and entering. Referring to

the presentence-investigation report, the court indicated that Thompkins had a high

risk to reoffend.

       {¶33} The sentences for the aggravated-robbery offenses fell within the

statutory range for first-degree felonies, as set forth in R.C. 2929.14(A)(1).

Moreover, R.C. 2929.14(C)(1) required the mandatory three-year prison term for the

firearm specification to be served consecutively to and prior to the terms on the

underlying felonies.

       {¶34} Merger of offenses. Thompkins also argues that the trial court erred

by failing to merge his two aggravated-robbery convictions under R.C. 2941.25(A),

because the offenses were allied offenses of similar import. The record reflects that

he asserted in the trial court that the robbery offenses merged with the aggravated-

robbery offenses, and that the four firearm specifications should merge. However,

he did not assert that the aggravated-robbery offenses should merge.

       {¶35} By failing to seek the merger of his aggravated-robbery convictions in

the trial court, Thompkins forfeited his allied-offenses claim for appellate review.

See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21.

Therefore, he must demonstrate plain error. Id. at ¶ 22.

       {¶36} Offenses involving separate victims are offenses of dissimilar import

within the meaning of R.C. 2941.25(B).      State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892, ¶ 26; Rogers at ¶ 27. In this case, the state proved that


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                      OHIO FIRST DISTRICT COURT OF APPEALS



Thompkins and his codefendants had robbed the hotel clerk of her personal phone

and robbed the hotel of cash from its register. See State v. Lytle, 10th Dist. Franklin

Nos. 15AP-748 and 15AP-754, 2016-Ohio-3532, ¶ 54.                  Thompkins’s conduct

constituted offenses involving separate victims. Therefore, we hold that the trial

court did not commit plain error in imposing separate sentences for the two counts

of aggravated robbery. See Ruff at ¶ 26; Rogers at ¶ 27.

       {¶37} Thompkins’s sentences are not contrary to law, and the trial court did

not err by failing to merge the aggravated-robbery convictions.             Therefore, we

overrule the fourth assignment of error and affirm the trial court’s judgment.

                                                                      Judgment affirmed.



CUNNINGHAM, P.J., and ZAYAS, J., concur.



Please note:

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




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