[Cite as State v. Curtis, 2016-Ohio-1318.]

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



STATE OF OHIO,                               :         APPEAL NO. C-150174
                                                       TRIAL NO. B-1401226
        Plaintiff-Appellee,                  :
                                                            O P I N I O N.
  vs.                                        :

FRANK CURTIS,                                :

      Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences Vacated
                           in Part, and Cause Remanded

Date of Judgment Entry on Appeal: March 30, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
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M OCK , Judge.

          {¶1}   After a jury trial, defendant-appellant Frank Curtis was convicted of

murder with a specification, aggravated robbery, carrying a concealed weapon, and

having a weapon while under a disability.        He was acquitted of one count of

aggravated murder with specifications and a second count of aggravated robbery

with specifications. The trial court sentenced him to 15 years to life for the murder

count, one year for the accompanying specification, 11 years in prison for the

aggravated-robbery count, 18 months for carrying a concealed weapon, and three

years for having a weapon while under a disability. The trial court ordered Curtis to

serve those sentences consecutively, for a total of 31 and one half years to life in

prison.

          {¶2}   In five assignments of error, Curtis appeals his convictions and

sentences. He first argues that his convictions were based on insufficient evidence or

were contrary to the manifest weight of the evidence. He next argues that his trial

was unfair due to prosecutorial misconduct.       Curtis’s third assignment of error

alleges that the trial court improperly ejected certain spectators in the presence of

the jury. He then argues that the trial court should have declared a mistrial when the

jury indicated that it was unable to reach a verdict. Finally, he claims that his

sentences were improper. For the reasons set forth below, we conclude that part of

his sentence was improper. We affirm in all other respects.

                         Afternoon Auto Repair Turns Deadly

          {¶3}   On the afternoon of March 7, 2014, Markisha Chatman picked up her

cousin Daryl Chatman to drive him to a car dealership so he could purchase a car. Daryl

had $2,300 in cash for that purchase. While driving to the dealership, Markisha’s car

began to shake. Since they were in the area of the place where she usually had her car


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serviced, she drove to the repair shop at the intersection of Hamer and Back streets in

Over-the-Rhine.

       {¶4}     While there, Markisha listened to music in her car and Daryl started

playing dice with someone Markisha later learned was named “B Bran” or Brandon

Kaiser. After playing a few rounds, Brandon left and Daryl started playing with someone

else. After Brandon left, a man that Markisha knew as “Three” walked up to the group.

Markisha had known “Three” for years from the neighborhood, and because he worked

with her brothers at a local gas station. Markisha later identified “Three” as Curtis.

Curtis shook hands with several people around the garage, but did not directly engage

Daryl. He walked around the corner and disappeared for a few minutes before returning

to the group.     This time, Curtis approached Daryl and produced a handgun.          He

demanded that Daryl give him the money. When Daryl refused, Curtis fired a single

shot into Daryl’s chest. After Daryl fell, Curtis took the money from the ground and

Daryl’s hand, and fled. Daryl was pronounced dead at the scene.

       {¶5}     Edonia Anderson, a friend of Markisha, also testified that she witnessed

the events of March 7. She testified that “Three” had a pistol in his hand when he

approached Daryl as he shot dice with “B.” She also said that “Three” and “B” were often

together in the neighborhood. She said that “Three” told Daryl that “[y]ou know what

time it is, give it up.” She said that Daryl responded by saying “[b]ro, you better go on

with that,” before smacking the gun away. Edonia said that “Three” then fired into

Daryl’s chest, grabbed the money, and left. She also said that, although other people

were playing dice at the time, only Daryl was targeted for robbery. Edonia also testified

that her brother had witnessed the shooting. But he did not give a statement to police,

and he had been killed by the time the trial in this case began.




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        {¶6}     Salina Dean was also interviewed by police. She initially told them that

she had witnessed the shooting. Before being called to testify, however, she informed

prosecutors that she had not witnessed the shooting, but was relying on an account of

the incident she had heard from her cousin, Jarielle Dean. Upon learning that Salina

had not actually witnessed the shooting, the state declined to call her as one of its

witnesses. Counsel for Curtis did call her as a witness for the defense, and attempted to

challenge the details of her account, but she insisted that her version was exactly what

Jarielle had relayed to her. Jarielle was also unable to testify because he had been shot

and killed before the trial.

        {¶7}     The state also called a witness who testified about Curtis’s cell phone

activity. The witness was able to testify that Curtis’s cell phone was in use in the area of

the shooting at the time of the shooting. Testimony also confirmed calls between

Curtis’s phone and a phone belonging to Brandon Kaiser before and after the shooting.

The state also called a state parole officer to testify that Curtis’s brother was in prison at

the time of the shooting, in order to refute Curtis’s argument that witnesses had

mistaken him for his brother.

        {¶8}     Curtis was charged with aggravated murder with specifications, in

violation of R.C. 2903.01(B); murder with specifications, in violation of R.C.

2903.02(B); aggravated robbery with specifications, in violation of R.C. 2911.01(A)(1);

aggravated robbery, in violation of R.C. 2911.01(A)(3); carrying a concealed weapon, in

violation of R.C. 2923.12(A)(2); and having a weapon while under a disability, in

violation of R.C. 2923.13(A)(2). After a jury trial, he was convicted and sentenced.

Asserting five assignments of error, Curtis now appeals.




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                    Convictions Based on Sufficient Evidence and
                       Not Against the Weight of the Evidence

       {¶9}     In his first assignment of error, Curtis claims that his convictions were

based on insufficient evidence or were against the manifest weight of the evidence. In

reviewing a challenge to the sufficiency of the evidence, this court must determine

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

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). In addressing a manifest-weight-of-the-evidence challenge, this court must

review 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 such a manifest miscarriage of

justice that the convictions must be reversed and a new trial ordered. Id. at 387.

       {¶10}    Curtis’s convictions for murder, aggravated robbery, carrying a

concealed weapon, and having a weapon while under a disability were based upon

sufficient evidence and were not against the manifest weight of the evidence. Markisha

had known Curtis for many years, she clearly identified him as the shooter, and there is

no evidence in the record that would provide a motive for her to lie about his

involvement in her cousin’s death. Edonia identified him as well. While Curtis has

highlighted inconsistencies in the testimony of the state’s witnesses and has pointed to

how their versions differed from what they had told police initially, we cannot conclude

that these inconsistencies and changes rendered the testimony so unreliable or

unworthy of belief that the jury lost its way and created a manifest miscarriage of justice

in finding Curtis guilty of the offenses. See Thompkins at 387. As the trier of fact, the

jury was in the best position to judge the credibility of the witnesses. We overrule the

first assignment of error.

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                       No Actionable Prosecutorial Misconduct

       {¶11}    In his second assignment of error, Curtis claims that the prosecutor

engaged in misconduct by relying on testimony that was false, misstating evidence

during closing argument, denigrating defense counsel, and improperly asking the jury to

stack inferences. We find no improper conduct.

       {¶12}    First, Curtis claims that the state improperly elicited testimony from

Edonia that she was with Salina when the incident occurred, even though Salina had

admitted that she was not there. But the testimony cited was actually elicited during

cross-examination. The statement from Edonia that she and Salina arrived at the scene

together was actually part of the statement that Edonia gave to police, and upon which

Edonia was being cross-examined by defense counsel. It was not part of the testimony

given in response to direct questioning by the state. Therefore, it cannot serve as the

basis for a claim of prosecutorial misconduct.

       {¶13}    Curtis next claims that the prosecutor misstated evidence during closing

argument when he stated that the phone information was “better than DNA.” He also

claims that the state denigrated defense counsel during closing argument.           When

judging a prosecutor’s comments in closing argument, they must be reviewed in the

context of the entire case and the entire argument. State v. Draughn, 76 Ohio App.3d

664, 671, 602 N.E.2d 790 (1st Dist.1992). The hyperbolic reference to the phone

evidence being better that DNA simply does not rise to the level of requiring a reversal of

Curtis’s convictions, in the context of the otherwise appropriate discussion of the

evidence. And isolated references to defense “tactics” are likewise not enough to require

reversal.   A criminal conviction will not be lightly overturned on the basis of a

prosecutor’s comments standing alone. United States v. Young, 470 U.S. 1, 11, 105 S.Ct.

1038, 84 L.Ed.2d 1 (1985).



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       {¶14}    Finally, we do not think that the prosecutor improperly asked the jury to

stack inferences. Parties have wide latitude in their closing statements, particularly

“latitude as to what the evidence has shown and what inferences can be drawn from the

evidence.” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 213.

On this point, Curtis references the portion of the closing argument in which the state

suggested that Brandon and Curtis were working together to commit the robbery. But

the record contains sufficient evidence to support that inference. Brandon played dice

with Daryl and, when doing so, had occasion to see that Daryl had a significant amount

of cash. Brandon and Curtis called each other both before and after the robbery. Curtis

robbed only Daryl, indicating that someone had singled him out. And Brandon and

Curtis were known to hang around together in the neighborhood. This was enough

evidence to permit the state to suggest in closing argument that the two men were

working together. See State v. Stober, 3d Dist. Putnam No. 12-13-09, 2014-Ohio-1568, ¶

135.

       {¶15}    We overrule Curtis’s second assignment of error.

                         Ejecting Sleeping Spectators Not an
                                 Abuse of Discretion

       {¶16}    In his third assignment of error, Curtis claims that he was improperly

prejudiced when the trial court ejected two spectators from the gallery shortly before

delivering the jury instructions. The trial court ejected the spectators because they were

sleeping in the courtroom. The trial court did not abuse its discretion.

       {¶17}    Under R.C. 2945.03, “the judge of the trial court shall control all

proceedings during a criminal trial.” This court has said that the trial court, “in limited

circumstances, has discretion to order the exclusion of spectators. So the court may

order the exclusion of spectators so long as it does not inappropriately deny the



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defendant’s right to a public trial.” State v. Morris, 157 Ohio App.3d 395, 398, 2004-

Ohio-2870, 811 N.E.2d 577, ¶ 13 (1st Dist.). The “flagrant disregard in the courtroom of

elementary standards of proper conduct should not and cannot be tolerated.” State v.

Sewell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-3285, ¶ 39, quoting Illinois v.

Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

       {¶18}    In this case, the spectators were ejected from the courtroom while the

jury was present. While it may be a better practice to excuse the jury temporarily, there

was no indication in the record that the jury knew that the spectators were there in

support of Curtis.     While counsel did suggest to the trial court that spectators

sympathetic to Curtis were all sitting on the same side of the courtroom, there was no

indication that the jury knew this. The trial court did not close the courtroom entirely,

nor did it exclude any spectators other than the two that were sleeping. There is no

indication that Curtis suffered prejudice by the way that the trial court handled the

situation. Therefore, we overrule Curtis’s third assignment of error.

                          Failure to Declare a Mistrial Was Not
                                 an Abuse of Discretion

       {¶19}    In his fourth assignment of error, Curtis claims that the trial court

abused its discretion when it failed to declare a mistrial when the jury reported that it

was unable to reach a verdict. We disagree.

       {¶20}    The decision to grant a mistrial is left to the discretion of the trial court

and will not be overturned without a showing that the court abused that discretion.

State v. Iacona, 93 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). Likewise, the decision to

allow a jury to continue to deliberate is a discretionary decision for the trial court. State

v. Holland, 1st Dist. Hamilton No. C-930140, 1993 Ohio App. LEXIS 5935 (Dec. 15,




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1993). Mistrials need only be declared when a fair trial is no longer possible. State v.

Herring, 94 Ohio St.3d 246, 254, 762 N.E.2d 940 (2002).

       {¶21}    Jury deliberations began in the afternoon of Wednesday, January 28,

2015. In the morning of Thursday, January 29, the jury asked for some supplies for

note-taking and for copies of exhibits that they could mark on. They then deliberated for

the entire day. In the morning of Friday, January 30, the jury asked the trial court for

suggestions on how to reconcile differences generally when reaching a verdict. The note

did not explain what the differences were and did not indicate that they were

deadlocked. The trial court instructed the jury pursuant to State v. Howard, 42 Ohio

St.3d 18, 537 N.E.2d 188 (1989). Counsel for Curtis did not object to the instruction.

The jury later asked for a copy of that instruction, which the trial court provided without

objection.   After deliberating through midday, the jurors were dismissed for the

weekend.

       {¶22}    After a hour of deliberation on Monday, February 2, the jurors indicated

that they were having trouble reaching a verdict. They were again instructed pursuant to

Howard, with additional instructions pursuant to State v. Martens, 90 Ohio App.3d

338, 343, 629 N.E.2d 462 (3d Dist.1993). The jury then deliberated for the remainder of

the day. On the morning of February 3, the jury asked the trial court to explain the

difference between preponderance of evidence and reasonable doubt, asked for a copy of

the Howard/Martens instruction they had received the previous day, the testimony of

Markisha Chatman, and a copy of the juror’s oath. Shortly after 3 p.m. that afternoon,

the jury reported that it had reached verdicts on all counts.

       {¶23}    The Howard charge is a supplemental instruction for the court to give a

deadlocked jury to encourage the jurors to reach a verdict. Howard at 18. “To avoid the

pitfall of coercing a guilty verdict from an otherwise deadlocked jury, the supplemental


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jury instruction must advance two goals: it ‘must encourage a verdict where one can

conscientiously be reached,’ and it ‘must be balanced, asking all jurors to reconsider

their opinions in light of the fact that others do not agree.’ ” State v. Carson, 1st Dist.

Hamilton No. C-040042, 2005-Ohio-902, ¶ 48, quoting Howard at 25.

       {¶24}    Curtis argues that the jury was clearly divided and that instructing them

to continue was coercive. We disagree. The jury had deliberated for over a day before it

first indicated that it needed guidance on how to reconcile differences. After receiving

the Howard instruction, they deliberated for half a day, went home for the weekend, and

deliberated on the following Monday morning before indicating to the trial court that

they were having trouble reaching a verdict. As the state noted below, this was actually

the first time that the jurors specifically indicated that they were having trouble reaching

a verdict. After being instructed, they returned to their work through the end of that

day. After receiving a copy of the instruction and other materials the next morning, they

deliberated for six more hours and reached a verdict.

       {¶25}    On this record, we find that the trial court handled the situation

appropriately and we perceive no potential for coercion created by the trial court's

action. Thus, we find no abuse of discretion by the court on the basis of the Howard

charge, and we find no ground for a mistrial. Accordingly, we overrule Curtis’s fourth

assignment of error.

                            Murder and Aggravated Robbery
                               Convictions Must Merge

       {¶26}    In his final assignment of error, Curtis claims that his murder,

aggravated-robbery, and weapons convictions should merge as they are allied offenses of

similar import. As that argument relates to the murder and aggravated-robbery charges,

we are constrained to agree.



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       {¶27}    Under R.C. 2941.25, a trial court must merge offenses if the conduct of

the defendant can be construed to constitute two or more allied offenses of a similar

import, and this conduct shows that the offenses were not committed separately or with

a separate animus. State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶

74. The determination of whether offenses are allied contemplates "three separate

factors—the conduct, the animus, and the import." State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus (“Ruff II”). Separate

convictions are permitted for allied offenses if the offenses were (1) dissimilar in import

or significance, (2) committed separately, or (3) committed with a separate animus or

motivation. Id. at paragraph three of the syllabus. A reviewing court may end its analysis

upon finding that any one of the three applies. Bailey at ¶ 83.

       {¶28}    The facts of this case are relatively simple. Curtis approached Daryl,

produced a handgun, and demanded money. When Daryl refused, Curtis fired a single

shot into his chest. After Daryl fell, Curtis took the money from the ground and Daryl’s

hand, and fled. Under these facts, it cannot be said that the murder and aggravated

robbery were committed either separately, or with a separate animus or motivation. The

only way, therefore, that the counts would not merge would be if they were offenses

dissimilar in import or significance.

       {¶29}    This court has addressed the issue of when counts are of dissimilar

import or significance. State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534,

2015-Ohio-3367. In Ruff, we concluded that rape and aggravated burglary were not

offenses of dissimilar import or significance when the rape constituted the aggravating

physical-harm element of the aggravated-burglary charge under R.C. 2911.11(A)(1). Id.

at ¶ 17, citing Ruff II at ¶ 17. In so doing, this court held that where conduct that

constitutes one offense causes a harm that is not separate and identifiable from the


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harm caused by the aggravating element of another offense, then the offenses are of a

similar import. Id. at ¶ 18.

       {¶30}    In this case, Curtis was convicted of murder and aggravated robbery

under R.C. 2911.01(A)(3), which requires proof of the additional aggravating element of

inflicting, or attempting to inflict, serious physical harm. The only serious physical harm

that Curtis inflicted on Daryl was the single gunshot to the chest that was almost

immediately fatal. The state argues that the aggravated robbery was complete when

Curtis brandished the weapon and demanded money. But that would only have been

true if he had been convicted of aggravated robbery pursuant to R.C. 2911.01(A)(1).

While Curtis may have been guilty of robbery at that point, he had not violated R.C.

2911.01(A)(3) until he shot Daryl. Pursuant to this court’s holding in Ruff, the trial court

should have merged those counts.

       {¶31}    Curtis also argues that his convictions for having a weapon while under a

disability and carrying a concealed weapon should also have been merged by the trial

court. But this court has held that those charges do not always merge. See State v.

Garnett, 1st Dist. Hamilton No. C-090471, 2010-Ohio-3303, ¶ 20, citing State v. Rice,

69 Ohio St.2d 422, 433 N.E.2d 175 (1982); see also State v. Finnell, 1st Dist. Hamilton

Nos. C-140547 and C-140548, 2015-Ohio-4842, ¶ 74, citing State v. Bates, 1st Dist.

Hamilton No. C-140033, 2015-Ohio- 116, ¶ 30. And they do not merge in this case.

       {¶32}    The fifth assignment of error is sustained in part and overruled in part.




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                                       Conclusion

        {¶33}   Because the trial court should have merged the murder and aggravated-

robbery counts, we reverse its judgment in part and vacate the sentences imposed on

those counts. We remand this cause to the trial court with instructions to allow the state

to elect which allied offense it will pursue for purposes of conviction and sentence. In all

other respects, we affirm the judgment of the trial court.

Judgment affirmed in part, reversed in part, sentences vacated in part, and cause
remanded.

FISCHER, P.J., concurs.
STAUTBERG, J., concurs in part and dissents in part.

STAUTBERG, J., concurring in part and dissenting in part.

        {¶34}   I respectfully dissent from the majority’s opinion and judgment with

respect to Curtis’s fifth assignment of error.     I otherwise concur in the majority’s

opinion.

        {¶35}   While I am mindful of this court’s decision in State v. Ruff, 1st Dist.

Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, I am also mindful of my

dissent therefrom. In addition, I believe the Ohio Supreme Court’s decision in State v.

Earley, ___Ohio St.3d___, 2015-Ohio-4615, ___N.E.3d ___, sheds further light on

the approach we should take in analyzing questions regarding merger. In Earley, the

court held:

        [A] trial court may impose cumulative sentences for both aggravated

        vehicular assault in violation of R.C. 2903.08(A)(1)(a) and operating a

        motor vehicle under the influence of alcohol or drugs in violation of R.C.

        4511.19(A)(1)(a) when the offense of operating a vehicle while under the

        influence is the predicate conduct for aggravated vehicular assault.

Id. at ¶ 21.


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       {¶36}   I disagree that because the harm for which Curtis was convicted under

R.C. 2911.01(A)(3) also caused the death of Daryl Chatman, the murder must merge

with the aggravated robbery. The import and significance of murder, causing the death

of another, is quite different than the import of aggravated robbery, a theft offense.

Compare R.C. 2903.02(B) and 2911.01(A)(3). Indeed, Curtis could have been convicted

of aggravated robbery merely by inflicting serious physical harm while committing the

theft offense. The murder of the victim was not a requisite element. The fact that the

harm that resulted in the murder charge is also the predicate conduct for the aggravated

robbery charge should not automatically result in merger.         See Earley, supra.      I

therefore dissent with respect to the fifth assignment of error, but otherwise concur in

the majority opinion.


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




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