[Cite as State v. Young, 2017-Ohio-4476.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                    Court of Appeals No. E-16-003

        Appellee                                 Trial Court No. 2015-CR-013

v.

Randal Young                                     DECISION AND JUDGMENT

        Appellant                                Decided: June 23, 2017

                                            *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Jonathan M. McGookey, Assistant Prosecuting Attorney,
        for appellee.

        Mollie B. Hojnicki-Mathieson, for appellant.

                                            *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a December 15, 2015 judgment of the Erie County

Court of Common Pleas, which, following jury trial, convicted appellant, Randal Young,

of one count of aggravated robbery, in violation of R.C. 2911.01, a felony of the first
degree, one count of theft in violation of R.C. 2913.02, a felony of the fifth degree, one

count of safecracking, in violation of R.C. 2911.31, a felony of the fourth degree, one

count of felonious assault, in violation of R.C. 2903.11, a felony of the third degree, one

count of weapons under disability, in violation of R.C. 2923.13, a felony of the second

degree, one count of safecracking, in violation of R.C. 2911.31, a felony of the fourth

degree, one count of vandalism, in violation of R.C. 2909.05, a felony of the fifth degree,

one count of theft in violation of R.C. 2923.02, a misdemeanor of the first degree, and

one count of possession of criminal tools, in violation of R.C. 2923.24, a felony of the

fifth degree. In addition, appellant was found to be a repeat violent offender. Appellant

was sentenced to a total term of incarceration of 36 years. For the reasons set forth

below, this court affirms the judgment of the trial court, in part, and reverses it, in part.

       {¶ 2} Appellant sets forth the following two assignments of error:

              1. APPELLANT RECEIVED CONSTITUTIONALLY

       INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS DEPRIVED

       OF A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED

       BY THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND

       SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION

              2. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR

       IN PERMITTING THE JURY TO DETERMINE THE EXISTENCE AND

       NATURE OF APPELLANT’S PRIOR CONVICTION FOR AN

       OFFENSE OF VIOLENCE, IN VIOLATION OF R.C. 2941.149




2.
       {¶ 3} The following undisputed facts are relevant to this appeal. On December 29,

2014, appellant relocated from Memphis, Tennessee to Sandusky, Ohio. Appellant

moved into the Sandusky apartment of co-defendant, Thaddious Jefferson, and his

girlfriend. The record shows that appellant possessed multiple convictions for aggravated

robbery and was well known by law enforcement agencies in Tennessee.

       {¶ 4} At approximately midnight on December 31, 2014, Joshua McDowell and

Tom Ewald, two Shell gas station employees, were transferring cash from the register

into the store safe. While McDowell had his back turned towards the register, a masked

man entered the station, pointed a gun at McDowell, and ordered him to lie on the floor.

       {¶ 5} The gunman ordered Ewald to give him all of the money and threatened to

shoot if the police showed up. The cash stolen in the robbery included a substantial

quantity of change. The New Year’s Eve robber wished the victims a happy new year

and left the station with approximately $993.09 in cash and change. Immediately after

the robber left, the victims called 9-1-1. McDowell conveyed to the 9-1-1 operator that

the suspect would be carrying a Shell station bag full of change.

       {¶ 6} Shortly thereafter, the responding officers arrived on scene and began

reviewing the Shell station’s security camera video footage. Around the same time,

appellant’s co-defendant was observed walking in the vicinity of the gas station and was

stopped by officers. Although later found to have been involved in the crime, the co-

defendant was ruled out as being the masked gunman based upon review of the video

footage. Because a substantial amount of change was stolen in the robbery, the detective




3.
in charge of the investigation examined the available video from the local Kroger

Coinstar machine. Although the Coinstar machine had no internal camera, a store camera

was positioned in the vicinity of the machine.

      {¶ 7} That footage showed a man who the detective determined to be a match of

the masked gunman from the Shell robbery. In the Kroger footage, the man is wearing

the exact same clothing as the Shell station robber. The video also shows the man filling

out a Western Union money order form which was used to send money to a woman in

Tennessee, appellant’s home state. The form included the sender’s address, phone

number, and appellant’s name, Randal Young.

      {¶ 8} Upon discovery of appellant’s name and address, the detective called the

Memphis Police Department. The detective forwarded the Memphis Police Department

the name and photos from the Shell station and Kroger video footage in an email.

Memphis Police were familiar with appellant given his criminal history in their

jurisdiction. One officer had previously interviewed appellant, and was able to positively

identify appellant from the video footage. The Sandusky detective next tracked appellant

to the local apartment where he had been staying at since late December.

      {¶ 9} On January 5, 2016, a man attempted to break into an ATM machine in

Sandusky, Ohio and triggered an alarm on the machine. Police responded to the scene

and reviewed the surveillance video from the ATM. The video showed a man trying to

break into the ATM with a crowbar. The ATM machine had distinct lime-green paint on

its exterior. Detectives identified the ATM thief as the same man in the Kroger and Shell




4.
station security footage. Police also matched footprints near the ATM with the boots

appellant wore when he was arrested for the Shell station robbery. When officers

searched appellant’s apartment they recovered a crowbar with the same distinct lime-

green paint as was on the exterior of the ATM.

       {¶ 10} On January 6, 2016, during a police interview, the co-defendant denied that

he and appellant had any involvement with the Shell station or the ATM robbery.

However, on April 10, 2016, the co-defendant entered into a plea agreement. Pursuant to

the plea agreement, the co-defendant disclosed that he gave appellant a gun and dropped

appellant off near the Shell station on the night of the robbery. He further revealed that

appellant returned to their apartment that night and gave him $100 of the stolen money.

The co-defendant testified to these events at appellant’s trial.

       {¶ 11} On December 11, 2015, the jury found appellant guilty on all counts and

further determined him to be a repeat violent offender. Appellant was sentenced to a total

term of incarceration of 36 years. This appeal ensued.

       {¶ 12} In the first assignment of error, appellant argues that trial counsel was

ineffective for not objecting to certain evidence and testimony. In support, appellant cites

three disputed actions of trial counsel. Appellant claims counsel was ineffective by:

(1) failing to object to the detective’s testimony regarding the co-defendant’s plea

agreement; (2) failing to object to testimony about appellant’s prior criminal record;

(3) failing to object to police identification of appellant in pictures and emails during




5.
testimony. We must determine if appellant has demonstrated that a different outcome

would have occurred but for these claimed errors of counsel.

       {¶ 13} “When a convicted defendant complains of the ineffectiveness of counsel’s

assistance, the defendant must show that counsel’s representation fell below an objective

standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct.

2052, 80 L.E.2d 674 (1984). In State v. Lytle, 48 Ohio St.2d 391, 396-97, 358 N.E.2d

623 (1976), the Ohio Supreme Court developed a two-step process to determine if

counsel’s assistance was ineffective:

       First, there must be a determination as to whether there has been a

       substantial violation of any of defense counsel’s essential duties to his

       client. Next, and analytically separate from the question of whether the

       defendant’s Sixth Amendment rights were violated, there must be a

       determination as to whether the defense was prejudiced by counsel’s

       ineffectiveness.

In addition, “[t]he defendant must show that there is a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland at 694.

       {¶ 14} At trial, appellee presented the videotaped proffer between co-defendant

and a detective. In the video footage, the detective said, “I’m going to talk to you about

what happened with two incidences [sic] and then that’s it, okay? Then the deal – but you

have to be completely honest with me, okay? That’s part of the deal.” Appellant argues




6.
that this improperly bolstered co-defendant’s credibility. Appellant cites State v. Pruett,

2015-Ohio-1377, 31 N.E.2d 197 (8th Dist.), to argue that “the opinion of a witness as to

whether another witness is being truthful is inadmissible.” Id. However, in State v.

Williams, 79 Ohio St.3d 1, 679 N.E.2d 646 (1997), the Ohio Supreme Court determined

that similar evidence was not bolstering, rather the party was simply “exploring the basis

of the plea arrangements.” According, appellant has not demonstrated that the outcome

of the trial would have been different even if counsel had objected to this evidence.

       {¶ 15} Appellant further suggests that counsel was ineffective in failing to object

to testimony about his prior criminal record. Our review shows that the introduction of

this evidence was necessary in order for the court to evaluate appellant’s culpability in

the possessing a weapon under disability charge. Nevertheless, even assuming arguendo

that counsel erred in not objecting, appellant has not shown the probability of a different

outcome but for this claimed error of counsel.

       {¶ 16} Lastly, appellant suggests that the police identification of appellant from

pictures and emails was improper. We do not concur. The Tennessee police interviewed

appellant face-to-face and in close proximity. They had dealings with and were familiar

with appellant. The reliability of their identification was supported by ample evidence.

Appellant has not shown the probability of a different outcome but for counsel’s failure

to object to the properly introduced evidence. Wherefore, we find appellant’s first

assignment of error not well-taken.




7.
       {¶ 17} In appellant’s second assignment of error, he claims the trial court erred in

allowing the jury to determine appellant’s repeat violent offender status, rather than the

determination being performed by the trial court. We concur.

       {¶ 18} This court previously considered this issue in State v. Hopkins, 6th Dist.

Erie No. E-10-027, 2011-Ohio-5908. This court held in relevant part, “[T]he RVO

specification may properly be made by either the trial court or the jury.” Hopkins at ¶ 34.

       {¶ 19} However, subsequent to Hopkins, several Ohio appellate districts have

reached a contrary decision on this issue. Both State v. Banks, 2015-Ohio-5413, 56

N.E.3d 289 (8th Dist.) and State v. Brown, 5th Dist. Stark No. 14-CA-102, 2015-Ohio-

1006, held that the RVO (repeat violent offender) specification decision must be done by

the trial court, rather than by the jury. Notably, the Ohio Supreme Court has declined

further review of both of these decisions. Accordingly, our prior holding in Hopkins is

overruled and we similarly find that RVO specification decisions may not be determined

by the jury.

       {¶ 20} As such, we find that the language of R.C. 2941.149 requires that the trial

court, not the jury, make determinations regarding whether one is a repeat violent

offender. Wherefore, we find appellant’s second assignment of error to be well-taken.

       {¶ 21} We note that our reversal in this matter is limited to the sentencing finding

that appellant is a repeat violent offender. In this case, appellant’s prior convictions

would have been admissible to prove the possessions of weapons under disability charge

pursuant to R.C. 2923.13. We further note that under these circumstances, the finding by




8.
the jury rather than the court that appellant is a repeat violent offender constitutes

harmless error as there would have been no reasonable probability that this evidence may

have contributed to appellant’s underlying convictions. See State v. Rahman, 23 Ohio

St.3d 146, 151 (1986).

       {¶ 22} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is hereby affirmed, in part, and reversed, in part. The matter is hereby

remanded to the trial court for resentencing with respect to the RVO specification and for

further proceedings consistent with this decision. Appellant and appellee are each

ordered to pay half of the costs of this appeal pursuant to App.R .24.


                                                                  Judgment affirmed, in part,
                                                                       and reversed, in part.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




9.
