[Cite as State v. Cassano, 2012-Ohio-4047.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 97228



                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                        ADAM CASSANO

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-535072

        BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.

        RELEASED AND JOURNALIZED: September 6, 2012
[Cite as State v. Cassano, 2012-Ohio-4047.]
ATTORNEY FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Stephanie Heibertshausen
           John Wojton
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
[Cite as State v. Cassano, 2012-Ohio-4047.]
ON RECONSIDERATION
                                1




MELODY J. STEWART, P.J.:

        {¶1} Defendant-appellant Adam Cassano was found guilty by the trial

court of four counts of felonious assault, two counts of aggravated robbery,

and two counts of having a weapon while under disability. The state charged

that Cassano, acting on information provided by codefendant Jerrell Glenn,

robbed a group of victims, shooting two of them.                        The issues on appeal

concern the sufficiency and weight of the evidence, the admission of telephone

text messages, ineffective assistance of counsel, and the court’s failure to

merge firearm specifications at sentencing.

                                                  I

        {¶2} The first and second assignments of error raise issues relating to

the weight and sufficiency of the evidence. Cassano does not make a specific

argument as to why there was insufficient evidence to support his

convictions.        Instead, he refers us to the arguments made in support of

arguments for why the court’s judgment is against the manifest weight of the

evidence.       This fails the App.R. 16(A)(7) requirement that the appellant

present an “argument with respect to each assignment of error presented for

          The original announcement of decision, State v. Cassano, 8th Dist. No. 97228,
        1


2012-Ohio-3073, released July 5, 2012, is hereby vacated. This opinion, issued upon reconsideration,
is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 2.2(A)(1).
review[.]” State v. Sparent, 8th Dist. No. 96710, 2012-Ohio-586, ¶ 11. We

consider only the argument that the court’s judgment is against the manifest

weight of the evidence.

      {¶3} Cassano’s manifest weight of the evidence argument is simply that

the court lost its way by finding that he was the gunman who robbed and shot

two of the victims. His argument rests primarily on the state’s use of certain

text messages sent by codefendant Glenn that appeared to tell the recipient

the time and location that Glenn and the victims would arrive at a certain

location.   The state theorized that these messages were sent by Glenn to

guide Cassano to a place where the robbery could be committed. Cassano

argues that the state failed to prove that he was the recipient of Glenn’s text

messages and, given the victims’ failure to identify him as the shooter, there

was significant doubt whether he was correctly convicted.

      {¶4} The manifest weight of the evidence standard of review requires

us to 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 trier of fact 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. Otten, 33 Ohio App.3d 339, 340,

515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier of fact’s decision must be plainly or obviously contrary to all of the

evidence. This is a difficult burden for an appellant to overcome because the

resolution of factual issues resides with the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The

trier of fact has the authority to “believe or disbelieve any witness or accept

part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St.

61, 67, 197 N.E .2d 548 (1964).

      {¶5} The state’s evidence showed that the victims, accompanied by

Glenn, visited several bars during an evening out.       One of those victims,

Kenneth Elsleger, was known by Glenn to be a drug dealer who carried large

amounts of cash.    As the group was returning to Elsleger’s apartment at

about 2:30 a.m., one of them noticed Glenn was sending text messages from

his telephone, but trying to hide the telephone’s screen from view of the

others as he did so. When they arrived and parked at Elsleger’s apartment,

the group exited the car. One of the victims noticed that Glenn immediately

ran away. A few minutes later a male approached Elsleger and asked for

help lighting a cigarette. The male then pulled a gun, fired a single shot in

the air, and demanded that Elsleger empty his pockets.          Elsleger began

moving backwards and watched as his brother grabbed the male’s arm. The

male apparently threw the brother to the ground and then ripped away a
necklace that Elsleger was wearing.     The male then shot Elsleger in the

neck. The brother regained his footing and grappled with the male, but he,

too, was shot in the scuffle. The male then fled.

      {¶6} The victims were unable to identify their assailant from photo

arrays. Three of the four victims described the robber as short, white, and

bald; the fourth believed that the robber was African-American, but allowed

that she might have mistakenly reached that conclusion because the male

was wearing a dark, hooded sweatshirt that cast a shadow over his face.

      {¶7} A fresh covering of snow had fallen on the evening of the robbery.

The police discovered footprints and tire marks leading away from the scene.

They followed the footprints to the front entrance of another apartment

complex within walking distance of the shooting. An unidentified male who

matched the general description of the robber exited the building. A police

officer asked him if he had been in the building all night. The male told

them that he had just arrived at the building. The officer who spoke with

the male noticed that he appeared “very nervous,” was giving “disjointed

partial answers,” and could not explain who dropped him off or how he

arrived at the building.

      {¶8} As the unidentified male was speaking to the police, Glenn exited

the building and greeted the male. Glenn told the police that he knew the
male. He also told the police that he had been inside an apartment all night.

 The police took Glenn up to the apartment and learned from the occupants

that Glenn had only just arrived at the apartment and that it was the male

who had been at the apartment all evening.

      {¶9} When confronted with information that he had not been in the

apartment all evening, Glenn admitted that he had been with the group of

victims that evening. He said that his car was parked at his residence and

that he started to walk back to his apartment as soon as the group of victims

arrived at the crime scene. The police were skeptical of this account because

Glenn’s apartment was more than two miles away and it made no sense to

them that Glenn would walk that distance at 2:30 a.m. in falling snow.    As

the police were preparing to give Glenn a ride to his house from the police

station, one of the victims casually asked them if they were taking Glenn

back to the scene of the crime so he could get his car. Glenn continued to

insist that he did not drive his car that evening, but the police soon

discovered a car at the crime scene that was registered to Glenn.

      {¶10} With Glenn now a person of suspicion, the police obtained a

record of Glenn’s cell phone activity after he provided his telephone number.

These records showed that he sent a number of text messages shortly before

the robbery to the same telephone number. Those messages appeared to be
directing the recipient of the text messages to the parking lot where the

robbery occurred, and more specifically to the location of Glenn’s car in that

lot. The recipient’s text messages in reply showed that the recipient was

having difficulty locating the car because the parked cars were covered with

snow. A final message from Glenn was: “we on our way.”

      {¶11} Although the police knew the number of the telephone that

received Glenn’s text messages, that telephone was registered to a “pay as

you go” cell phone carrier that did not keep subscriber information. Looking

at call records from what we will refer to as the “recipient telephone,” the

police discovered that the recipient telephone had made calls to a telephone

owned by Cassano’s mother at the house where he, too, resided. They also

learned that Cassano’s brother had called the recipient telephone.         In

addition, the police learned that the day after Cassano had been interviewed

by the police, Glenn unsuccessfully attempted to call the recipient cell phone

and then immediately called the Cassano residence telephone.

      {¶12} Using this information, the police obtained and executed a search

warrant at Cassano’s residence. They found an ammunition clip from a 9mm

Glock handgun.     The discovery of the ammunition clip was significant

because shell casings found at the scene of the robbery were thought to be

most likely fired from a 9mm Glock handgun. The police did not find a Glock
handgun, but they found a photograph of Glenn and Cassano posing with a

female.

      {¶13} Because none of the victims could positively identify Cassano as

the robber, the state relied on circumstantial evidence.        Unlike direct

evidence in which a witness testifies about a matter within the witness’s

personal knowledge such that the trier of fact is not required to draw an

inference from the evidence to the proposition that it is offered to establish,

circumstantial evidence requires the drawing of inferences that are

reasonably permitted by the evidence.          Although there are obvious

differences between direct and circumstantial evidence, those differences are

irrelevant to the probative value of the evidence — circumstantial evidence

carries the same weight as direct evidence. State v. Treesh, 90 Ohio St.3d

460, 485, 739 N.E.2d 749 (2001). The Ohio Supreme Court has “long held

that circumstantial evidence is sufficient to sustain a conviction if that

evidence would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026

(1990).

      {¶14} Cassano’s argument is built on two points: the state could not

definitively prove that he was the recipient of Glenn’s text messages on the
night of the robbery and none of the witnesses positively identified him as the

robber.

      {¶15} It is true that the state’s evidence concerning the recipient of

Glenn’s text messages did not directly identify Cassano — the recipient

number was for a prepaid phone that did not provide subscriber information.

But the circumstantial evidence allowed the court to infer reasonably that

Cassano was in possession of the telephone at the time of the robbery. Glenn

admitted that he and Cassano were friends, so it was not out of the question

that Glenn would have messaged Cassano. Records from Glenn’s telephone

showed that after Cassano had been interviewed and released by the police,

Glenn first tried to call the recipient telephone number and then immediately

called the land line number associated with Cassano’s residence.

      {¶16} The nature of the text messages were such that they could be

reasonably interpreted as directing the recipient to the crime scene.

Although none of the victims could specifically identify Cassano from photo

arrays, they were able to give a general description of height, weight, and

baldness that matched Cassano.

      {¶17} At trial, Cassano contradicted the statements he made to the

police shortly after the robbery by offering a new alibi — he had been at a

strip bar on the evening of the robbery until the bar closed at 2:30 a.m. His
alibi witnesses, all of whom claimed to be friends with Cassano, firmly

recalled his presence at the bar because of an incident between Cassano and a

dancer who threw roses at Cassano. There was some uncertainty as to the

exact date on which this incident occurred. One alibi witness testified that

she had been at the strip bar on a Thursday/Friday, but this did not help

Cassano because the robbery occurred in the very early hours of a Saturday.

The witness later claimed (prompted by a calendar offered to her by defense

counsel on redirect examination), that she had her dates mixed up and that

the incident did occur on a Friday/Saturday.      The dancer who threw the

roses at Cassano was even more unclear as to the exact date this incident

occurred and could only say that it may have occurred on either a Friday or a

Saturday. Given the conflicting accounts of the alibi from both Cassano and

his witnesses, the court undoubtedly believed that they lacked credibility.

      {¶18} In addition to evidence suggesting that Glenn sent messages to

Cassano’s telephone and that Cassano had offered a doubtful alibi, the state

offered evidence that Cassano was in possession of an ammunition clip for a

Glock handgun. While the police did not recover the actual gun used during

the commission of the robbery, the court could reasonably believe that there

would be no practical explanation for Cassano having ammunition for a

non-existent gun.
      {¶19} As with all circumstantial evidence, nothing in the state’s case

directly proved that Cassano was the robber. But the state’s evidence could

well have convinced the court that the application of various facts formed a

larger picture that, when viewed as whole, made a compelling case for

Cassano’s guilt. To find otherwise would be to say that Cassano was the

victim of circumstances that were too far beyond the realm of pure

coincidence to be believable. The first and second assignments of error are

overruled.

                                       II

      {¶20} A major portion of the state’s case consisted of the text messages

sent from Glenn’s telephone on the night of the robbery.         Cassano next

argues that, as to him, these text messages were inadmissible hearsay,

offered for the truth of what was stated in those messages. Although he

concedes that the text messages might have been admissible against Glenn as

admissions, he argues that any connection between those text messages and

himself was just “theory” at the time the court admitted them. The state

maintains that the text messages were offered as business records.

      {¶21} Hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Evid.R. 801(C). Even though classified as hearsay,
                                     11
certain evidence is nonetheless admissible under exceptions to the Rules of

Evidence.     As applicable here, the court admitted the telephone records

under the business record exception listed in Evid.R. 803(6).        That rule

excepts business records from exclusion at trial if they are made in the course

of a regularly conducted business activity because the courts presume that

such records are trustworthy given the self-interest to be served by the

accuracy of such entries. Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d

245 (1947).

      {¶22} To qualify for the business-records exception, a record must meet

the following criteria: (1) the record must be one recorded regularly in a

regularly conducted activity, (2) a person with knowledge of the act, event, or

condition recorded must have made the record, (3) it must have been recorded

at or near the time of the act, event, or condition, and (4) the party who seeks

to introduce the record must lay a foundation through testimony of the record

custodian or some other qualified witness. State v. Davis, 116 Ohio St.3d

404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171.

      {¶23} Cassano argues that a representative of Verizon Wireless, the

carrier for Glenn and the parent company of a subsidiary wireless service

that acted as the carrier for the recipient telephone, was not allowed by the

court to testify to how the cell phone records were compiled and whether the
method of record retention was reliable.        This is not accurate.      The

representative testified that the records were maintained in the “normal

course of business activity” through an automated computer system. That

testimony alone was sufficient to establish the prerequisites for admitting the

text messages as business records.

      {¶24} The court did sustain a defense objection to the representative’s

statement that the records were “reliable.” The reliability of evidence has

two components here.     Proper authentication of a business record under

Evid.R. 901(A) requires that a proponent of a document produce “evidence

sufficient to support a finding that the matter in question is what the

proponent claims it to be.”    State v. Easter, 75 Ohio App.3d 22, 25, 598

N.E.2d 845 (4th Dist.1991). To do this, a witness must “testify as to the

regularity and reliability of the business activity involved in the creation of

the record.” State v. Hirtzinger, 124 Ohio App.3d 40, 49, 705 N.E.2d 395 (2d

Dist. 1997).   This goes to the fundamental reason why the courts allow

certain forms of hearsay into evidence.       As business records, the text

messages are deemed inherently trustworthy because we assume Glenn’s cell

phone carrier had a particular self-interest in the accuracy of the records it

produced.
[Cite as State v. Cassano, 2012-Ohio-4047.]
        {¶25} This form of reliability must not be confused with the reliability

or credibility of the text messages as evidence that implicated Cassano in the

robbery. When viewed in context, the court’s statement about whether the

text messages were “reliable” was not that the text messages were not

reliable as business records (they were), but whether they credibly showed

that Cassano had been the recipient and sender of the text messages when

there was no direct evidence to show that he received and sent those

messages. That kind of reliability was a matter for the court to determine,

so the court properly sustained an objection to a question that might have

allowed the cell phone representative to give an opinion that encroached into

the court’s factfinding function.

        {¶26} But whether the court was wrong to admit the text messages

under the business record exception to the hearsay rule is of no consequence

because two possible outcomes existed from the use of the evidence, neither of

which benefit Cassano.               If the court was to find from the circumstantial

evidence that Cassano owned the recipient telephone, any text messages sent

from the recipient telephone were nonhearsay as admissions under Evid.R.

801(D)(2), consistent with Cassano’s concession that the text messages sent

from Glenn’s telephone were admissions against Glenn. Alternatively, if the

court was to find that Cassano did not own or was not using the recipient
telephone, the text messages would have no prejudical effect whatsoever on

Cassano because they would not have been evidence implicating Cassano.

      {¶27} This is exactly what the court concluded after extensive

discussions on whether to allow the text messages into evidence. The court

confirmed that if it concluded that Cassano did not own the recipient

telephone, the text messages sent from that telephone would not constitute

proof against Cassano and their admission would not “hurt” him.              It

ultimately allowed them as having “some relevance.”

      {¶28} Exactly what relevance and weight the court gave to the text

messages is unclear because the court gave no reasons for its guilty finding.

Cassano finds it “unsettling” that the court did not alert counsel prior to

delivering the verdict that it gave weight to the text messages in its

deliberations, but the court was under no obligation to do so and it is unclear

just how Cassano might have benefitted from prior notice. He claims that he

would have filed a motion for a mistrial based on a Bruton violation, but as

we address in the following section, a motion on those grounds would not

have been viable. While the court’s basis for admitting the text messages

might have been equivocal, no error is manifest, so we have no basis for

finding that the court abused its discretion by admitting the text messages.

Our conclusion necessarily moots consideration of Cassano’s fifth assignment
                                     15
of error, which claims that he was denied due process because the court

erroneously considered the cell phone records.



                                      III

      {¶29} For his fourth assignment of error, Cassano argues that trial

counsel was ineffective for failing to request a mistrial under the Bruton rule

when the state introduced Glenn’s text messages.         He argues that the

admission of a series of text messages between him and Glenn were

statements of a coconspirator in furtherance of a conspiracy that should not

have been admitted against him.

      {¶30} In Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20

L.Ed.2d 476 (1968), the United States Supreme Court held that the

confession of a codefendant who exercises his or her Fifth Amendment right

not to testify is not admissible against the other defendant because that

defendant has no opportunity to cross-examine the confessing codefendant.

But the admission of nonhearsay is not a Bruton violation. United States v.

Inadi, 475 U.S. 387, 398, 106 S.Ct. 1121, 1128, 89 L.Ed.2d 390, fn. 11 (1986)

(stating that nonhearsay does not violate the defendant’s right to confront

witnesses); White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (“Because this

testimony was not used for the truth of the matter asserted by the
out-of-court declarant, it was not hearsay, and Bruton is inapposite.”) If, as

Cassano concedes, the text messages sent by Glenn constituted admissions by

him, they were nonhearsay and Bruton does not apply.

      {¶31} Even if Glenn’s text messages were not considered nonhearsay,

Cassano would have no confrontation argument because the Bruton rule

applies to trials by juries. Cassano waived the right to a trial by jury and

elected to be tried by the court. In Lee v. Illinois, 476 U.S. 530, 542, 106

S.Ct. 2056, 90 L.Ed.2d 514 (1986), the court noted that the admission of a

non-testifying codefendant’s confession in a joint bench trial was “not strictly

speaking a Bruton case because we are not here concerned with the

effectiveness of limiting instructions in preventing spill-over prejudice to a

defendant.” And courts have held that “the Bruton rule is inapplicable to the

incriminating confession of a non-testifying codefendant in a joint bench

trial.” Johnson v. Tennis, 549 F.3d 296, 298 (3d Cir. 2008); In re Jones, 1st

Dist. Nos. C-090497 and C-090499, 2010-Ohio-3994, ¶ 24. This is because

the law “recognizes the presumption that a judge in a bench trial has no

difficulty in disregarding inadmissible evidence in reaching his verdict[.]”

United States. v. Cardenas, 9 F.3d 1139, 1155 (5th Cir.1993).

                                      IV
[Cite as State v. Cassano, 2012-Ohio-4047.]
        {¶32} Finally, Cassano complains that the court erred by sentencing

him to three consecutive three-year terms on firearm specifications.                The

three firearm specifications related to the felonious assault and aggravated

robbery counts against Elsleger and a single count of felonious assault

against the brother. Cassano argues that the firearm specifications should

have merged because he claims they all derived from “a continuous sequence

of events, connected in time and space.”

        {¶33} Ordinarily, the court is forbidden from imposing sentence on

multiple firearm specifications for “felonies committed as part of the same act

or     transaction.”             See      former   R.C.   2929.14(D)(1)(b)   [now   R.C.

2929.14(B)(1)(b)].          However, that section applies only to the extent that

former R.C. 2929.14(D)(1)(g) [now R.C. 2929.14(B)(1)(g)] does not apply.

Former R.C. 2929.14(D)(1)(g) states:

        If an offender is convicted of or pleads guilty to two or more

        felonies, if one or more of those felonies are aggravated murder,

        murder, attempted aggravated murder, attempted murder,

        aggravated robbery, felonious assault, or rape, and if the offender

        is convicted of or pleads guilty to a specification of the type

        described under division (B)(1)(a) of this section in connection

        with two or more of the felonies, the sentencing court shall

        impose on the offender the prison term specified under division
      (B)(1)(a) of this section for each of the two most serious

      specifications of which the offender is convicted or to which the

      offender pleads guilty and, in its discretion, also may impose on

      the offender the prison term specified under that division for any

      or all of the remaining specifications. (emphasis added).

      {¶34} Cassano was found guilty of committing two or more felonies.

One of those felonies was felonious assault, and he was found guilty of

firearm specifications under former R.C. 2929.14(D)(1)(a) [now R.C.

2929.14(B)(1)(a)].       Under former R.C. 2929.14(D)(1)(g), the court was

required to impose on Cassano prison terms for the two most serious

specifications, and could also, in its discretion, impose sentence for any other

specifications. State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶

96; State v. Beatty-Jones, 2d Dist. No. 24245, 2011-Ohio-3719, ¶ 16. The

court imposed sentence on all three firearm specifications and Cassano makes

no argument that the court abused its discretion by doing so. We thus have

no basis for finding an abuse of discretion necessary to overturn the

imposition of the consecutive sentence for three firearm specifications.

      {¶35} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas          to carry this judgment into execution.    The defendant’s

conviction 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.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., CONCURS;

MARY J. BOYLE, J., CONCURS IN JUDGMENT
ONLY WITH SEPARATE OPINION




MARY J.      BOYLE, J., CONCURRING IN JUDGMENT ONLY:

       {¶36} Upon reconsideration, I do not agree that App.R. 16(A)(7) is applicable with

respect to Cassano’s second assignment of error.       I believe that Cassano has adequately

raised a sufficiency challenge to his conviction and would therefore address his sufficiency

challenge.   But after having applied the appropriate review, I find that the evidence is legally
sufficient to sustain the verdict and would therefore overrule the second assignment of error on

this basis.   See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
[Cite as State v. Cassano, 2012-Ohio-4047.]
