         [Cite as State v. Dalmida, 2015-Ohio-4995.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-140517
                                                       TRIAL NO. B-1205478-B
        Plaintiff-Appellee,                       :
                                                               O P I N I O N.
  vs.                                             :

GRADY DALMIDA,                                    :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 4, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,


Michele L. Berry, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Judge.

       {¶1}     Following a jury trial, Grady Dalmida was found guilty of aggravated

robbery, robbery, having weapons while under disability, and two counts of felonious

assault. He was sentenced to 14 years imprisonment.

       {¶2}     Dalmida advances the following arguments in this appeal: (1) his rights

were violated with regard to the trial court’s treatment of the photo-lineup procedures

used, (2) the trial court erred when it did not give a jury instruction on noncompliance

with photo-lineup procedures, (3) his rights were violated when the photo lineups were

lost, (4) the court erred when it did not instruct the jury on the elements of constructive

possession, (5) the indictment improperly charged the weapon-under-disability offense,

(6) his conviction for having a weapon while under disability was based on insufficient

evidence, (7) the lack of a jury instruction on constructive possession created a fatal

variance between the indictment and the state’s evidence, (8) the court erred by forcing

Dalmida to wear his jail uniform during trial, (9) his trial counsel provided

constitutionally ineffective assistance, and (10) the court erred by failing to merge allied

offenses of similar import.

                                   I. Background

       {¶3}     George Hawkins was attacked in the parking lot behind his apartment by

a man he recognized as Antonio Pryor. Pryor exited from a white Chevy Impala, yelled

at Hawkins, “Give me your money,” and struck Hawkins in the head and face with a gun.

As the two men struggled for control of the gun, another man exited from the Impala

and grabbed Hawkins from behind. This second man was later identified as Grady

Dalmida. The struggle continued with Dalmida yelling orders to Pryor and demanding

drugs and money from Hawkins. Dalmida struck Hawkins repeatedly. As the struggle




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moved to the door of Hawkins’s apartment, neighbors began throwing things from their

windows and yelling for them to stop. Before fleeing, Dalmida told Pryor to shoot

Hawkins. Pryor then shot Hawkins in the abdomen. Hawkins required an extensive

surgery and two months of recovery.

       {¶4}     Dalmida was found lying on the ground behind a large trash can,

wearing clothes that matched the description from 911 callers. He had Hawkins’s blood

on his shirt, and testing revealed lead and barium particles on his hands. As a result,

detectives made a photo array, which they showed to Hawkins in the hospital. An officer

read the “preparation form for a blind lineup” to Hawkins, and Hawkins identified

Dalmida.

       {¶5}     Dalmida argued that Hawkins mistakenly identified him as an

accomplice, when Dalmida attempted to help Hawkins before Pryor’s actual accomplice

arrived. He claimed that Pryor paid him for a ride, and that when Pryor attacked

Hawkins, Dalmida grabbed Hawkins in order to stop the altercation. He stated that

Pryor threated to shoot him after Pryor had shot Hawkins. Dalmida admitted that he

had lied about where he was and how the blood had gotten on his shirt when police

arrested him. But after hearing all the evidence and testimony, the jury found him guilty

of robbery, aggravated robbery, possession of a weapon while under disability, and two

counts of felonious assault.

       {¶6}     Dalmida’s various assignments of error can be distilled into three main

issues: (1) what effect the loss of the original photo lineup has on the case, (2) whether

the facts of this case as demonstrated in the record support a conviction for the offense

of having a weapon while under disability, and (3) whether any of Dalmida’s convictions

should have been merged.




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                                  II. Photo Lineup

       {¶7}     Dalmida’s first three assignments of error essentially argue that his

constitutional rights were violated when the photo-lineup procedures were not followed

and the original lineups were lost.

       {¶8}     R.C. 2933.83 requires law enforcement to use specific procedures for

conducting lineups. This includes using a blind administrator, maintaining written

records of the names, dates, and witnesses involved, and informing the eyewitnesses

that the suspect may or may not be in the lineup and that the administrator does not

know who the suspect is. R.C. 2933.83(B)(1)–(5). Dalmida argues that the lineups and

procedures were unduly suggestive and generated an unreliable identification.        To

support his argument, he points to the officer’s failure to obtain a contemporaneous

confidence statement from Hawkins, and that Hawkins had viewed Dalmida’s picture on

the news as a suspect two or three times prior to the lineup. The trial court considered

all of this information during the motion to suppress and stated that the lineup was not

unduly suggestive.

       {¶9}     The statute provides that the individual conducting the lineup must

make a written record that includes, among other information, the “identification and

nonidentification results obtained during the lineup, signed by the eyewitnesses,

including the eyewitnesses’ confidence statements made immediately at the time of

identification.” R.C. 2933.83(B). And the record contains no indication that a

contemporaneous confidence statement was procured, or that the jury was instructed on

the failure to obtain such a statement.

       {¶10}    However, an alleged violation of R.C. 2933.83 alone is not a valid basis

for suppression of identification testimony. State v. Ruff, 1st Dist. Hamilton No. C-

110250, 2012-Ohio-1910, ¶ 8. Instead, cross-examination regarding the procedures used



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is the proper remedy. Id. A trial court will suppress identification testimony when the

identification procedure used “was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.”    State v. Woods, 1st Dist.

Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶ 25, quoting Neil v. Biggers,

409 U.S. 188, 197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Because the question of whether

identification testimony is admissible is based on reliability, if the identification is

reliable it is admissible even if the identification procedure was suggestive. Woods at ¶

25. The defendant bears the burden of proving (1) that the procedures used were both

suggestive and unnecessary and (2) that the testimony was or will be unreliable under

the totality-of-the-circumstances test. State v. Brown, 1st Dist. Hamilton No. C-930217,

1994 Ohio App. LEXIS 3560, *32 (Aug. 17, 1994). Additionally, Dalmida forfeited any

argument with regard to the suggestiveness of the photographs, because trial counsel

objected only to the identification process, not the photographs. Under the plain-error

standard, an appellate court will reverse a judgment only where the outcome clearly

would have been different absent the alleged error. State v. Miller, 1st Dist. Hamilton

No. C-070691, 2008-Ohio-5899, ¶ 22.

       {¶11}   Dalmida complains that the jury should have been instructed on the

officer’s noncompliance with the identification statute, but since Dalmida never

requested a jury instruction on that matter, and did not object to the jury instructions

given at trial, this issue is also reviewed for plain error. See Crim.R. 30(A); State v.

Dixson, 1st Dist. Hamilton No. C-030227, 2004-Ohio-2575, ¶ 21. He contends the

failure to give this unrequested jury instruction is highly prejudicial, because this case

hinged entirely on a single eyewitness’s testimony. But we disagree. The state called

nine witnesses and admitted eight pieces of evidence. Further, when asked at the

motion-to-suppress hearing, Hawkins stated that he was 100 percent certain his



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identification was correct. The defendant had the victim’s blood on his shirt and

contradicted himself as to how the blood got there. The court held a hearing on the

motion to suppress the identification and found that nothing warranted suppression.

       {¶12}    The only case Dalmida cites to support his contention that the loss of

evidence warrants reversal is State v. Harper, 1st Dist. Hamilton No. C-130134, 2013-

Ohio-5217. But there, this court found that because the officer deferred to the video in

his testimony, without the DVD recording of the events the record lacked sufficient

evidence to convict the defendant of resisting arrest. Here, the record indicates neither

side ever offered the photo arrays into evidence. Since they were never admitted, the

lineups would never be part of the appellate record. See App.R. 9(A)(1); State v.

Zhovner, 3d Dist. Auglaize No. 2-12-13, 2013-Ohio-749, ¶ 11.

       {¶13}    We find no merit in Dalmida’s first three assignments of error, and

therefore, overrule them.

                         III.    Weapons Under Disability

       {¶14}    In his fourth, fifth, sixth, and seventh assignments of error, Dalmida

essentially argues his conviction for having weapons under disability violated his

constitutional rights, because the evidence was insufficient, he was not properly

indicted, and the jury was not properly instructed on constructive possession. At issue

here is whether Dalmida was convicted of having weapons under disability because of

his disability, since Pryor was the only person who actually held and fired the gun.

       {¶15}    A person who has been convicted of felony-drug possession is not

permitted to knowingly acquire, have, carry, or use any firearm or dangerous ordnance,

unless relieved from that disability. R.C. 2923.13(A)(3). Neither party disputes that it

was Pryor who possessed the firearm, which he used to assault, rob, and shoot Hawkins.




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       {¶16}    An accomplice can be convicted of having weapons under disability

without holding the firearm if that accomplice aided and abetted the person who actually

possessed and brandished the firearm. State v. Adams, 8th Dist. Cuyahoga No. 93513,

2010-Ohio-4478; State v. Lewis, 8th Dist. Cuyahoga No. 81957, 2003-Ohio-3673. A

nonshooting accomplice can be convicted for having weapons under disability based on

that accomplice’s disability, not the disability of the shooter. Adams at ¶ 18; contra

State v. Lewis, 2d Dist. Greene No. 96CA12, 1997 Ohio App. LEXIS 1316 (April 4, 1997)

(holding that in order to aid and abet another person in having a weapon under

disability, the individual who actually possesses the firearm must be the one with the

disability, not the aider and abetter). The accomplice can have constructive possession

of the firearm by exercising dominion and control through another. See State v. Wolery,

46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). The record demonstrates that Dalmida

had a prior felony conviction, was aware that Pryor possessed the firearm, and directed

Pryor to use the firearm to shoot Hawkins.

       {¶17}    The jury was instructed on both having a weapon under disability and

complicity. Dalmida stipulated that he had a prior felony conviction and the state

presented evidence that, while Pryor was the only person to actually possess and fire the

gun, Dalmida actively participated in the robbery, yelled orders at Pryor, and instructed

Pryor to shoot Hawkins. Further, because Dalmida never requested a jury instruction

on constructive possession and did not object to the jury instructions given at trial, this

issue must be reviewed under the plain-error standard. See Crim.R. 30(A); Dixson, 1st

Dist. Hamilton No. C-030227, 2004-Ohio-2575, at ¶ 21. Dalmida has not demonstrated

that the outcome of his trial would have been different if the jury had been instructed on

constructive possession.




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       {¶18}    Dalmida also claims the indictment was improper, because it charged

him individually for having a weapon under disability when the state’s theory was

actually based on complicity. But, as the state points out, “A charge of complicity may be

stated in terms of [the complicity statute itself] or in terms of the principal offense.” R.C.

2923.03(F). That statute “adequately notifies defendants that the jury may be instructed

on complicity, even when the charge is drawn in terms of the principal offense.” State v.

Herring, 94 Ohio St.3d 246, 251, 762 N.E.2d 940 (2002). Thus, a defendant charged

with an offense may be convicted on proof that he was complicit in its commission, even

if the indictment describes the offense in terms of the principal offense and does not

mention complicity.

       {¶19}    Dalmida was aware that he had a disability and was not supposed to

have a firearm. He possessed the firearm by actively participating in the robbery and

directing Pryor to shoot Hawkins. Therefore, Dalmida’s fourth, fifth, sixth, and seventh

assignments of error are overruled.

                                   IV.    Jail Uniform

       {¶20}    In his eighth assignment of error, Dalmida claims the trial court erred by

“forcing him to stand trial before a jury while wearing his jail uniform.”

       {¶21}    Nothing in the record indicates that Dalmida requested and was denied

a recess or continuance in order to obtain different clothing. Further, the portions of the

record Dalmida identifies as evidence that he “made clear on the record that he did not

wish to appear in his jail uniform,” include the judge telling prospective jurors to ignore

the fact that Dalmida was wearing “garb from the Justice Center.” The other is a

statement Dalmida made at sentencing, which is obviously after the trial had been

completed. There is no evidence that Dalmida ever objected or communicated that he

wanted different clothing until sentencing. Therefore, the standard here is plain error.



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Because the judge told the jurors to disregard the fact that Dalmida was wearing his jail

uniform, this court must presume the jurors followed those instructions. See State v.

Fears, 86 Ohio St.3d 329, 334, 715 N.E.2d 136 (1999). Dalmida’s eighth assignment of

error is overruled.

                             V.    Ineffective Assistance

       {¶22}    In his ninth assignment of error, Dalmida contends his trial counsel

provided constitutionally ineffective assistance of counsel. To succeed on his claim of

ineffective assistance of counsel, Dalmida must show that his trial counsel’s performance

was deficient and that this deficient performance prejudiced his defense such that he

was denied a fair trial. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1985),

citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 67 (1984).

Dalmida claims his trial counsel’s performance fell below an objective standard of

reasonableness when he failed to present evidence regarding law enforcement’s failure

to follow the photo-lineup procedure, present evidence that Hawkins had identified

another suspect, admit the photo lineups into evidence, request a jury instruction on

law enforcement’s failure to follow the photo-lineup procedure, object to the jury

instructions and/or indictment regarding the charge of having a weapon while under

disability, object to Dalmida appearing at trial in his jail uniform, and object to the

court’s improper sentence.

       {¶23}    But Dalmida does not explain how these failures fell below the objective

standard of reasonableness or how he has been prejudiced. Counsel extensively cross-

examined the officers with regard to the steps taken in the photo lineup. The trial court

merged several of the counts at sentencing, demonstrating that the court performed a

merger analysis and determined which counts it believed should merge. Importantly,

Dalmida has failed to demonstrate “a reasonable probability that, were it not for


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counsel’s errors, the result of the trial would have been different.” See Bradley at 142.

Therefore, Dalmida’s ninth assignment of error is overruled.


                                      VI.    Merger

           {¶24}   In his tenth assignment of error, Dalmida claims that the trial court

erred by convicting him of multiple offenses based on the same conduct, because the

offenses should have been merged. Under R.C. 2941.25, offenses merge when the

defendant’s conduct can be construed to constitute two or more allied offenses of similar

import, and the conduct establishes that the offenses were not committed separately or

with a separate animus.

           {¶25}   To determine whether allied offenses merge under R.C. 2941.25, courts

must consider 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. The Ohio Supreme

Court recently explained that an “allied-offenses analysis is dependent upon the facts of

a case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26. A

defendant can be convicted of multiple offenses for the same conduct if any one of the

following is true: (1) the offenses are dissimilar in import or significance—in other

words, each offense caused separate, identifiable harm, (2) the offenses were committed

separately, or (3) the offenses were committed with separate animus or motivation. Id.

at ¶ 25.

           {¶26}   Dalmida maintains that the felonious-assault, having-weapons-under-

disability, and aggravated-robbery counts merge, because the convictions are based on

his sole conduct of acting in concert with Pryor to assault Hawkins with a firearm. The

court merged the robbery with the aggravated robbery, and merged the two felonious

assaults. Because this case involved only one victim, in looking at Dalmida’s conduct, we

must answer the following questions: (1) are the offenses dissimilar in import, in other



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words, whether the harm that resulted from the aggravated robbery, felonious assault,

and having weapons under disability was separate and identifiable, (2) whether the

offenses were committed separately, or (3) whether the offenses were committed with

separate animus or motivation. If we answer any one of the three questions in the

affirmative then the offenses are not allied offenses and are not subject to merger. State

v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 83.

             A. Merger of Felonious Assault with Aggravated Robbery

        {¶27}    The record is clear that the aggravated robbery and felonious assault

were committed separately. To adequately examine whether the offenses are subject to

merger, we must look at Dalmida’s conduct in the context of the statutory elements.

        {¶28}    The pertinent aggravated robbery statute, R.C. 2911.01(A)(1), provides

that,

        No person, in attempting or committing a theft offense * * * or in fleeing

        immediately after the attempt or offense, shall * * * 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.

The relevant felonious assault statute, R.C. 2903.11(A)(2), provides that, “No person

shall knowingly * * * cause or attempt to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.”

        {¶29}    The use of a gun to rob Hawkins satisfies the elements of aggravated

robbery. Pryor displayed the gun and both Dalmida and Pryor demanded drugs and

money from Hawkins. After Hawkins told Dalmida and Pryor that he did not have any

drugs or money, Dalmida and Pryor ripped the pockets off Hawkins’s pants. Finding no

drugs or money, they took his cell phone. Then, Dalmida told Pryor to shoot Hawkins.



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Shooting Hawkins was not in furtherance of the aggravated robbery, because the

robbery had already been completed.          Thus, because the aggravated robbery and

felonious assault were committed with separate conduct, the offenses do not merge.

      B. Merger of Weapons Under Disability with Felonious Assault and
                            Aggravated Robbery

          {¶30}   Dalmida’s constructive possession of the firearm is sufficient to meet the

weapons-under-disability statute.       However, Dalmida claims the weapons-under-

disability count is an allied offense of similar import that must merge with the

aggravated robbery and felonious assault. We disagree.

          {¶31}   The relevant weapons-under-disability statute, R.C. 2923.13(A)(3),

provides that a person who has been convicted of a felony involving illegal drug

possession, shall not “knowingly acquire, have, carry, or use any firearm or dangerous

ordnance.”

          {¶32}   Offenses are of dissimilar import if the harm that results from each

offense is separate and identifiable. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, at ¶ 26; see State v. Earley, __ Ohio St.3d __, 2015-Ohio-4615, __ N.E.3d __, ¶ 15.

This court has previously held that having weapons while under disability is of a

dissimilar import from other offenses “because the statute manifests a legislative

purpose to punish the act of possessing a firearm while under a disability separately

from any offense committed with the firearm.” See State v. Bates, 1st Dist. Hamilton

No. C-140033, 2015-Ohio-116, ¶ 30. The underlying purpose of criminalizing having

weapons while under disability is to protect the general public from the increased risk of

harm of armed criminals. See State v. Rice, 69 Ohio St.2d 422, 427, 433 N.E.2d 175

(1982).




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       {¶33}   The offenses of aggravated robbery and felonious assault have different

import and significance than merely having a weapon while under disability. The

offense of having a weapon while under disability occurs when a person who is under

indictment for or has been convicted of a felony offense of violence or involving illegal

drugs, acquires, has, carries, or uses a firearm. R.C. 2923.13(A). This import is separate

and identifiable both from Dalmida’s use of the gun to relieve Hawkins of his property

and his use of the gun to cause Hawkins physical harm.       Therefore, we hold that the

harm that resulted from each offense was separate and identifiable, and, thus, the

offenses do not merge. Dalmida’s tenth assignment of error is overruled.

                               VII. Conclusion

       {¶34}   We affirm the trial court’s judgment.

                                                                     Judgment affirmed.


C UNNINGHAM , P.J., and S TAUTBERG , J., concur.


Please note:

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




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