[Cite as State v. Cummings, 2014-Ohio-3717.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100657




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               DEVON S. CUMMINGS
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-573446-A

        BEFORE: Rocco, J., Boyle, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: August 28, 2014

                                               -i-
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Devon S. Cummings appeals from his convictions and

the sentences imposed after a jury found him guilty of aggravated robbery and felonious

assault, both with firearm specifications.

       {¶2} Cummings presents five assignments of error. He claims that his convictions

were based on essential facts not presented to the grand jury, because the evidence the

state presented at trial failed to match the facts the state specified in the bill of particulars.

 He claims that his convictions are not supported by either sufficient evidence or the

manifest weight of the evidence. He claims that his convictions constituted allied offenses

that should have merged for sentencing purposes. Similarly, he further claims that the

trial court erred in imposing consecutive sentences.

       {¶3} This court has reviewed the record with Cummings’s claims in mind, but

finds no merit to any of them. Consequently, his convictions and sentences are affirmed.

       {¶4} Cummings’s convictions result from an incident that occurred on April 13,

2013. The state’s witnesses provided the following testimony at Cummings’s trial about

the incident.

       {¶5} The victim, sixty-nine year-old Daniel Steve Carroll, was in the business of

purchasing meat wholesale then taking the meat around in his truck to sell it to his

customers. One of his stops that day was to a customer who resided on East 100th Street

near Quincy Avenue in Cleveland. Carroll’s nieces lived a few doors away.
        {¶6} Carroll arrived at the house at approximately 4:00 p.m. He set the alarm on

his truck without locking the door and proceeded into the kitchen of the house. His

customer was cooking something, so he waited for her to become available.

        {¶7} Within a few minutes, Carroll heard the sound of his truck alarm. He

quickly left the house to investigate, and, as he hurried down the driveway, he

encountered a young man wearing a red vest. Carroll directed an expletive to the young

man but continued to the vehicle because the driver’s side door was ajar. Carroll looked

inside to discover whether someone had stolen his cell phone.

        {¶8} While Carroll bent to inspect the front seat, he received a blow to his head

from behind. Another young man, whom Carroll later identified as Cummings, grabbed

him by his collar, spun him around, and struck him again. This time Carroll received a

blow in the face and fell to the ground.

        {¶9} Carroll looked up to observe that Cummings wore a black jacket and held a

gun in his right hand. Cummings ordered Carroll to “give it up.” As this occurred,

Carroll noticed that a small maroon-colored car was now parked on the street a few doors

away. Carroll protested that he had nothing and Cummings dealt him another blow

before reaching into Carroll’s pockets. Cummings found some currency, took it, then

fled.

        {¶10} By this time, some of the residents in the house, including Christopher Page,

had noticed the commotion and came outdoors. The young man wearing the red vest

remained nearby; Carroll pointed at him and called out that he “was part of this.” The
young man wearing the red vest also fled; Page, along with some companions, followed

him, but Page lost sight of him near East 105th Street.

       {¶11} Carroll brushed off offers to help him, noticing that the maroon car was

gone. Although he was bleeding from several head wounds, he returned to his truck.

Carroll drove down East 100th Street to stop very briefly at his nieces’ house to inform

them about the incident before he continued to the next cross street, which was Quebec

Avenue.

       {¶12} Carroll intended to drive home, but he heard one of the residents of his

customer’s house shouting at him about the young man in the red vest. While making

the turn onto Quebec Avenue, Carroll saw a small maroon car coming toward him.

Inside were two young men; the passenger wore a red vest.

       {¶13} Carroll performed a U-turn and pursued the car.          When the small car

stopped at the intersection with East 93rd Street, Carroll rammed his truck into the rear of

it. The passenger in the maroon car turned with a gun in his hand and fired two shots in

Carroll’s direction, but succeeded only in shattering the maroon car’s rear window. The

driver then continued his flight on East 93rd Street.

       {¶14} Carroll remained undeterred by the gunshot. As he followed the car, he

called the police to report his actions and his location. The police dispatcher convinced

Carroll to cease the chase, however. Carroll then stopped his truck at the intersection of

East 93rd and Mt. Auburn Avenue.
       {¶15} The police arrived at Carroll’s location at nearly the same time as did “a

couple carloads” of Carroll’s friends and relatives who lived nearby. Carroll by this time

required medical attention. Patrolman John Ball and his partner ensured that Carroll

received treatment by paramedics, heard discussions among Carroll’s relatives concerning

the identity of the maroon car’s driver, and then began “working on the report” of the

incident.

       {¶16} Thus, after checking on Carroll’s condition at the hospital, the officers went

to Cummings’s grandparents’ house.         The officers learned Cummings’s location,

proceeded there, and Cummings came out to meet them. Cummings indicated he knew

nothing about a robbery; he claimed he only stopped to pick up a friend who was being

chased by a van. Upon observing that Cummings’s small maroon car had been “backed

in on the vacant property” next door and that the “back window was broken out,” the

police arrested Cummings.

       {¶17} Cummings was indicted in this case on one count of aggravated robbery and

one count of felonious assault. Each count carried a one-year and a three-year firearm

specification. Cummings elected to take his case to a jury trial.

       {¶18} After considering the evidence presented by the state in addition to the

testimony of Cummings’s grandparents, the jury found Cummings guilty on both counts

with their firearm specifications. The trial court determined that neither the predicate

offenses nor their respective firearm specifications were allied pursuant to R.C. 2941.25,

and sentenced Cummings to a prison term that totaled eleven years.
       {¶19} Cummings appeals from his convictions and the sentences imposed with the

following five assignments of error.

              I.    Appellant’s constitutional rights were violated where his
       conviction for felonious assault and related firearm specifications were [sic]
       based on essential facts not presented to the Grand Jury and were [sic]
       contrary to the facts specified in the state’s Bill of Particulars.

              II. The trial court erred by failing to merge all allied offenses of
       similar import and by imposing separate sentences for allied offenses which
       violated Appellant’s state and federal rights to due process and protections
       against double jeopardy.

             III. Appellant’s convictions were not supported by sufficient
       evidence and the trial court erred by denying his motions for acquittal.

              IV. The convictions were against the manifest weight of the
       evidence.
              V. The trial court erred by imposing consecutive sentences that are
       contrary to law and not supported by the record.

       {¶20} Cummings’s first, second, and fifth assignments of error present interrelated

issues. They will be addressed together.

       {¶21} Cummings first argues that his convictions for two separate offenses must

be reversed because they were based on “essential facts not presented to the Grand Jury.”

He asserts that, because the bill of particulars filed in this case specified that the offenses

both took place “at the location of East 100th and Quebec, Cleveland, Ohio, 44014,” the

state was prohibited from presenting evidence at trial to prove that the offenses occurred

separately, i.e., that Cummings committed the aggravated robbery at East 100th and

Quebec, and that thereafter he was the accomplice of another person who committed a
felonious assault at East 93rd Street and Quebec.        As authority for his argument,

Cummings cites State v. Vitale, 96 Ohio App.3d 695, 645 N.E.2d 1277 (8th Dist.1994).

      {¶22} In Vitale, the defendant was indicted on one count of theft that was alleged

to have occurred on June 14, 1991. The state’s bill of particulars also stated that the

offense occurred “on or about June 14, 1991, at approximately 12:00 p.m., at the location

of 1869 East 79th Street in the City of Cleveland.” At trial, however, the state’s proof

indicated that, on June 14, 1991, the defendant had promised to give the repairman a

check for the work that had been performed on the defendant’s car, but changed his mind

and on June 21, 1991, told the repairman that he would not pay because the work was

unsatisfactory. The trial court permitted the state to amend the indictment to allege that

the theft had occurred “from June 14, 1991 through June 21, 1991 inclusive,” but this

court declared the change improper. In relevant part, this court noted:

             [T]he trial court herein acquitted the defendant of any offense
      occurring on or about the June 14th date: (“But I find there was no theft on
      that day * * * ”). Instead, the trial court convicted the defendant of theft
      which it found occurred on June 21, 1991 at the alleged victim’s house, not
      his place of business. The risk then is squarely presented that defendant was
      convicted of an offense on evidence that was never presented to the grand
      jury. In applying the similar protection of the Fifth Amendment, this
      potential must be considered critical, as in United States v. Ford (C.A.6,
      1989), 872 F.2d 1231, 1236:

                    “Absent language indicating the grand jury’s intent to
             permit a conviction based on more than one incident of
             criminal conduct, a court cannot assume that a grand jury
             would have included in its indictment an additional incident
             of criminal conduct. See [Ex parte] Bain, [(1887)], 121 U.S.
             [1] at 10, 7 S.Ct. [781] at 786 [30 L.Ed. 849 at 852]. It is
             therefore possible that the jury convicted Ford based on an
             incident of possession not intended by the grand jury to be
              part of the charge. This frustrates the fifth amendment grand
              jury indictment guarantee.”

(Emphasis added.)

       {¶23} The instant case presents entirely different facts. Cummings was charged

with two “incidents of criminal conduct” that occurred near in time and place, and two

people were alleged to have been involved in committing the different offenses. In spite

of the fact that Cummings took part in six pretrial hearings and that the state supplied

discovery and supplemented its discovery, Cummings neither requested during the

discovery phase a more specific statement of the offenses from the state, nor raised any

objections to the trial court’s jury instructions, which included instructions on complicity

and conspiracy. Thus, this case is more akin to the facts discussed by the Ohio Supreme

Court in State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985), in which the court

observed in relevant part as follows:

               * * * A certain degree of inexactitude of averments [in an
       indictment], where they relate to matters other than elements of the offense,
       is not per se impermissible or necessarily fatal to a prosecution.

              An accused is not foreclosed from securing specificity of detail,
       however, * * * [a] bill of particulars has a limited purpose – to elucidate or
       particularize the conduct of the accused alleged to constitute the charged
       offense. See, e.g., State v. Halleck (1970), 24 Ohio App.2d 74 [53 O.O.2d
       195]; State v. Dinsio (1964), 4 Ohio App.2d 309 [33 O.O.2d 353]. A bill
       of particulars is not designed to provide the accused with specifications of
       evidence or to serve as a substitute for discovery. State v. Wilson (1972),
       29 Ohio St.2d 2-3 [58 O.O.2d 409]. Thus, “* * * [o]rdinarily,
       specifications as to date and time would not be required in a bill of
       particulars since such information does not describe particular conduct, but
       [instead describes] only when that conduct is alleged to have occurred,
       knowledge of which * * * is generally irrelevant to the preparation of a
       defense.” (Emphasis sic.) State v. Gingell (1982), 7 Ohio App.3d 364, 367.
             ***

      * * * [W]here the inability to produce a specific time or date when the criminal conduct
      occurred is, as would be the more typical case, without material detriment to the
      preparation of a defense, the omission is without prejudice, and without constitutional
      consequence.

(Emphasis in original, underscoring added.)

      {¶24} Similarly, the record of this case demonstrates that knowledge of where each instance of

the criminal conduct was alleged to have occurred largely was irrelevant. The entire episode occurred

within a relatively small period of time and within a small area of Cleveland. Cummings denied taking

part in the aggravated robbery, but admitted to the police officers that he drove the maroon car, and

admitted that Carroll’s van chased and then struck his car. Thus, he knew of the location of the second

incident. Cummings denied that his passenger fired any gunshots; instead, he claimed his car’s rear

window shattered as a result of the collision. As the court stated in State v. Cooper, 139 Ohio App.3d

149 at 162, 743 N.E.2d 427 (12th Dist.2000):

             The record shows that appellant had sufficient information regarding each instance

      of conduct to mount a vigorous defense against the felonious assault charges. Nothing

      more than that is contemplated by the statutes and criminal rules providing for a bill of

      particulars.

             {¶25} Cummings prepared his defense without questioning the state’s theory of the

      case, did not complain of the state’s theory of the case until the sentencing hearing, and

      does not indicate how he could have defended himself differently had he been informed

      more specifically of the state’s theory of the case previous to that point. State v. Wilson,
5th Dist. Richland No. 13CA39, 2014-Ohio-41, ¶ 23-24.               Consequently, the state’s

failure in this case to specify in its bill of particulars that the felonious assault occurred in

a slightly different location from the address where the aggravated robbery occurred did

not constitute reversible error. Cummings’s first assignment of error is accordingly

overruled.

       {¶26} Based on his premise that only one incident occurred and that it occurred

only in the driveway at E. 100th Street, Cummings argues in his second assignment of

error that his convictions were allied offenses pursuant to R.C. 2941.25(A). Because his

premise is faulty, his argument fails.

       {¶27} R.C. 2941.25 prohibits the imposition of multiple punishments for the same

criminal conduct. An appellate court applies a de novo standard of review in reviewing a

trial court’s R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶28} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court clarified the test used to determine whether offenses are allied

offenses of similar import under R.C. 2941.25.            Under this test, courts must first

determine “whether it is possible to commit one offense and commit the other with the

same conduct.” Johnson at ¶ 48. If it is possible to commit both offenses with the same

conduct, courts must next determine whether the offenses were, in fact, committed by the

same conduct. If the offenses are committed either separately or with a separate animus,

the offenses will not merge. Id. at ¶ 51.
      {¶29} In this case, Cummings committed the offense of aggravated robbery in the

driveway of the house on E. 100th Street by striking Carroll and threatening him with a

gun before taking his money and then fleeing. A few minutes later, after Carroll caught

up to Cummings’s car, Cummings’s passenger turned in his seat, pointed a gun at Carroll,

and fired the weapon. The two shots Cummings’s accomplice fired at Carroll burst

through Cummings’s rear window.

      {¶30} The trial court correctly concluded from the facts presented in this case that

the offenses were committed separately and with a separate animus. State v. Johnson,

8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 23-25; State v. Orr, 8th Dist. Cuyahoga

No. 96377, 2011-Ohio-6269, ¶ 38. Cummings’s second assignment of error is overruled.

      {¶31} Again, based upon his premise that only one incident occurred and that it

occurred only in the driveway at E. 100th Street, Cummings argues in his fifth assignment

of error that the trial court improperly imposed consecutive prison terms upon him for his

convictions. Again, because his premise is faulty, his argument fails.

      {¶32} The standard of review set forth in R.C. 2953.08(G)(2) governs all felony

sentences. State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7. Thus, this

court reviews Cummings’s consecutive sentences to determine whether the imposition of

those sentences is clearly and convincingly contrary to law. Id.

      {¶33} The record of the sentencing hearing in this case demonstrates that the trial

court engaged in the required analysis before imposing consecutive sentences. Johnson,

8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 32-36. Furthermore, the trial court
made findings that comport with the statutory requirements. Id. Cummings’s fifth

assignment of error is also overruled.

       {¶34} Cummings argues in his third and fourth assignments of error that his

convictions are supported by neither sufficient evidence nor the manifest weight of the

evidence. However, this court disagrees.

       {¶35} When reviewing a claim that there is insufficient evidence to support a

conviction, this court views the evidence in a light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements of the

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

492 (1991), paragraph two of the syllabus. If there is sufficient evidence to support the

conviction as a matter of law, this court next considers the claim that the judgment was

against the manifest weight of the evidence.

       {¶36} In ruling on a challenge to the manifest weight of the evidence, this court

must review the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of witnesses and determine whether, in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Martin, 20 Ohio App.3d

172, 485 N.E.2d 717 (1st Dist.1983). The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.   Id.   This is because the weight of the evidence and the credibility of
witnesses are matters primarily for the jury to assess. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967).

      {¶37} R.C. 2911.01 states:

             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 do any of the following:

             (1) Have 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;

             (2) Have a dangerous ordnance on or about the offender’s person or

      under the offender’s control;

             (3) Inflict, or attempt to inflict, serious physical harm on another.

      {¶38} Felonious assault is defined in R.C. 2903.11(A)(2) as follows:

             (A) No person shall knowingly * * * :

             ***

     (2) Cause or attempt to cause physical harm to another * * * by means of a deadly
weapon or dangerous ordnance.

{¶39} Ohio’s complicity statute, R.C. 2923.03(A), provides:

      (A) No person, acting with the kind of culpability required for the commission of

an offense, shall do any of the following: * * * aid or abet another in committing the

offense.
       {¶40} In order to constitute aiding and abetting, the accused must have taken some role in

causing the commission of the offense. State v. Sims, 10 Ohio App.3d 56, 460 N.E.2d 672 (8th

Dist.1983). A person aids or abets another when he

              “supports, assists, encourages, cooperates with, advises, or incites” the principal in

       the commission of the crime and shares the criminal intent of the principal. Such intent

       may be, inferred from the circumstances surrounding the crime.

State v. Langford, 8th Dist. Cuyahoga No. 83301, 2004-Ohio-3733.

       {¶41} In State v. Adams, 8th Dist. Cuyahoga No. 93513, 2010-Ohio-4478, ¶ 19, this court held

that in order to “have” a firearm or dangerous ordnance, an individual must either actually or

constructively possess it. Id., citing State v. Hardy, 60 Ohio App.2d 325, 327, 397 N.E.2d 773 (8th

Dist.1978). This court stated:

              Actual possession requires ownership and, or, physical control; constructive

       possession may be achieved by means of an agent. * * *

              As we explained, the evidence was sufficient to prove beyond a reasonable doubt

       that Adams aided and abetted Rankin, the one who actually possessed and brandished the

       gun. Accordingly, through Rankin, Adams constructively possessed a firearm within the

       meaning of R.C. 2923.13(A)(3). See State v. Lewis, 8th Dist. Cuyahoga No. 81957,

       2003-Ohio-3673 (evidence sufficient to prove having a weapon while under disability

       when only codefendant pointed the gun at victims during robbery); State v. Reed, 8th

       Dist. [Cuyahoga] No. 93346, 2010-Ohio-1866 (conviction for having a weapon while
      under disability upheld despite defendant not being the shooter, but being an active

      participant in the crimes).

Adams at ¶ 16, 19.

      {¶42} The record of this case demonstrates that Cummings’s convictions are supported by both

sufficient evidence and the manifest weight of the evidence. Carroll stated that he looked right into

Cummings’s face when Cummings’s blows to his head caused him to fall to the ground. Carroll stated

that the man who struck him reached into his pockets and took his cash. Carroll also stated that he

recognized Cummings as “the guy that had hit [him] actual” when Carroll walked into the courtroom to

testify and saw Cummings.

             {¶43} One of the state’s witnesses testified that the man driving the maroon car in

      the vicinity of the robbery just after the robbery took place picked up the man wearing the

      red vest. Carroll testified that he spotted the two of them, Cummings attempted to get

      away, but Carroll gave chase. Carroll also stated that when he got close enough to

      Cummings’s car to ram it, Cummings’s passenger turned and fired gunshots at Carroll

      before Cummings and his cohort escaped. Cummings admitted to the police that the

      maroon car with the shattered back window was his, he had been driving it when

      Carroll’s van struck it, and that he had driven away with his passenger after the collision.

             {¶44} This evidence was thus sufficient to support each of Cummings’s

      convictions. State v. Allmond, 8th Dist. Cuyahoga No. 89020, 2007-Ohio-6191; State v.

      Jordan, 8th Dist. Cuyahoga No. 94168, 2010-Ohio-5131. Moreover, because the other

      witnesses provided testimony that corroborated Carroll’s version of the events, this court
cannot conclude that the jury “lost its way” in finding Cummings guilty of aggravated

robbery and felonious assault with firearm specifications. Id.

      {¶45} Accordingly, Cummings’s third and fourth assignments of error also are

overruled.

      {¶46} Cummings’s convictions and sentences are affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_______________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
