      [Cite as State v. Sweeting, 2013-Ohio-5097.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120733
                                                         TRIAL NO. B-1107880
     Plaintiff-Appellee,                             :

      vs.                                            :

DERRICK SWEETING,                                    :        O P I N I O N.

     Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

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

Date of Judgment Entry on Appeal: November 20, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.


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




CUNNINGHAM, Judge.

       {¶1}     Following a jury trial, defendant-appellant Derrick Sweeting appeals from

the convictions and sentences imposed for his aggravated robbery of a liquor store and a

convenience store. Despite being under a disability from a prior felony conviction,

Sweeting had robbed both stores at gunpoint. At trial, the jury acquitted Sweeting of

charges stemming from a third aggravated robbery. Because the trial court imposed

consecutive felony sentences without making the statutorily required findings, and failed

to give the required postrelease-control warnings, we must vacate the imposed sentences

and remand the case for resentencing. We affirm the trial court’s judgment in all other

respects.

       {¶2}     On the afternoon of November 19, 2011, a person matching Sweeting’s

description and wearing a black, hooded sweatshirt entered Twigg’s Carryout in

Sharonville, Ohio. He left the store after asking the clerk a question. When the other

customers left the store, Sweeting returned wearing the same hooded sweatshirt. He used

a red bandanna as a mask and brandished a black, semiautomatic handgun with an

extended magazine. Sweeting ordered the clerk to turn over the store’s money or be killed.

These events were captured on the store’s video-surveillance system.

       {¶3}     Police investigators also suspected that Sweeting had robbed a Marathon

gas station on November 20, 2011. Evidence gained in the investigation resulted in a

video recording of Sweeting purchasing minutes for his cellular telephone.

       {¶4}     The next day, Sweeting, again wearing the black hooded sweatshirt and

the red bandanna as a mask, and carrying a black, semiautomatic handgun, robbed the

Food Mart convenience store in Blue Ash, Ohio. The video recording from the store also

revealed unusual markings on Sweeting’s shoes.

       {¶5}     Three days later, police investigating a report of multiple shots fired in an

area near the other robberies, arrested Sweeting. In his waistband, they found a black,


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                      OHIO FIRST DISTRICT COURT OF APPEALS



Kel-Tec .380 semiautomatic handgun with an extended magazine. Live ammunition for

the handgun was found wrapped in a red bandanna in his pants pocket. A search of

Sweeting’s home revealed shoes with the same markings seen in the Food Mart video

recording. Images taken from Sweeting’s Facebook page showed him wearing a black

hooded sweatshirt and a red bandanna.

       {¶6}     At trial, a Cincinnati Bell security manager, in possession of the records of

Sweeting’s cellular telephone, testified that because a cellular telephone will usually

employ the nearest cellular tower to relay texts and phone calls, the records showed

Sweeting’s cellular telephone had been used near the scene of each robbery at times near

to the events charged in the indictment. But under cross-examination, the witness

admitted that cellular phones do not always employ the nearest cell tower and that

Sweeting could have been three miles or more away from the towers.

       {¶7}     At trial, Sweeting stipulated to a prior conviction for aggravated assault

that had placed him under a disability. At the conclusion of the trial, the jury returned

guilty verdicts for each offense related to the Twigg’s Carryout and the Food Mart

robberies. It also returned verdicts of not guilty for charges stemming from the Marathon

robbery.

       {¶8}     Nearly three months later, the trial court held a sentencing hearing. The

trial court afforded Sweeting the protection of the multiple-counts statute by finding that

each charged robbery offense was an allied offense of aggravated robbery. The trial court

then imposed four-year prison terms for each of the two aggravated-robbery offenses and

ordered each to be served consecutively to an accompanying three-year firearm

specification. The court imposed 18-month prison terms for each weapon-under-a-

disability offense. The trial court then ordered that each prison term would be served

consecutively for an aggregate sentence of 17 years. Sweeting brought this appeal.




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                                  I. Batson Challenges

       {¶9}     In his first assignment of error, Sweeting asserts that his equal-protection

rights were violated when the trial court permitted the state to exclude two potential jurors

based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d

69 (1986).

       {¶10}    Evaluation of a Batson challenge occurs in three steps: (1) the opponent of

the peremptory strike must make a prima facie case of racial discrimination; (2) the state

then offers a racially neutral explanation for the challenge; and (3) the trial court must

decide whether the opponent has proved purposeful racial discrimination. See State v.

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. A trial court’s

determination that a challenge was not motivated by a discriminatory intent will not be

reversed on appeal unless it is clearly erroneous. See State v. Hernandez, 63 Ohio St.3d

577, 583, 589 N.E.2d 1310 (1992).

       {¶11}    Here, the state used peremptory challenges to excuse two African-

Americans from the jury over Sweeting’s objections. But the state’s subsequent race-

neutral explanations for striking both prospective jurors demonstrated the absence of

discriminatory intent in its use of peremptory challenges. The state struck one prospective

juror because of his youth and his lack of life experience, and struck the other because her

religious beliefs would have made it difficult for her to pass judgment on another, and

because she had family members who had previously been convicted of crimes in

Hamilton County. Consequently, we cannot say that the trial court erred in overruling

Sweeting’s objections to the state’s challenges. The first assignment of error is overruled.

                II. Lack of Cautionary Instructions Not Plain Error

       {¶12}    In Sweeting’s second assignment of error, he asserts that the trial court

erred by failing to give curative instructions to the jury, including during “the final

instructions,” regarding the jury’s use of Sweeting’s prior conviction for aggravated



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                      OHIO FIRST DISTRICT COURT OF APPEALS



assault. The state was required to prove this prior conviction as an element of the

weapons-while-under-disability offenses.

       {¶13}    As Sweeting made no objection or request for a curative instruction, any

error, save plain error, was waived. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-

3426, 892 N.E.2d 864, ¶ 182; see also Crim.R. 30(A) and (B).

       {¶14}    We note that the trial court in fact had charged the jury that the

stipulation that Sweeting had been convicted of aggravated assault in 2009 was admitted

“for the purposes of your determination of the weapon under disability charge which

states that he was so convicted and then possessed a gun illegally.” In light of the jury’s

decision to acquit Sweeting of the offenses surrounding the Marathon robbery, we cannot

say that the jury impermissibly used the stipulation of prior criminal conduct to conclude

that he had acted in a similar manner in these offenses. See Evid.R. 404(B). Since we do

not conclude that the outcome clearly would have been different absent the alleged error,

we overrule the assignment of error. See Crim.R. 52(B); see also State v. Barnes, 94 Ohio

St.3d 21, 27, 759 N.E.2d 1240 (2002).

                         III. Trial Counsel’s Spirited Defense

       {¶15}    Sweeting next argues that he was denied the effective assistance of counsel

for various claimed deficiencies, including counsel’s failure to object to the testimony of

witnesses who had identified Sweeting from the store videotapes, her failure to object to

the admission of cellular-telephone-tower usage data, and her failure to seek cautionary

instructions for the use of Sweeting’s prior criminal offense. The arguments are feckless.

       {¶16}    To prevail on a claim of ineffective assistance of trial counsel, an appellant

must show, first, that trial counsel’s performance was deficient and, second, that the

deficient performance was so prejudicial that he was denied a reliable and fundamentally

fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180

(1993); see also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two

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and three of the syllabus. A reviewing court will not second-guess trial strategy and must

indulge a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-158, 694

N.E.2d 932 (1998).

       {¶17}    Here, Sweeting’s trial counsel worked vigorously to discredit the state’s

theory of the case and conducted a spirited defense. She succeeded to a substantial

degree, in that Sweeting was acquitted of the offenses surrounding the Marathon robbery.

Before trial, counsel also had moved successfully for severance of yet another convenience

store robbery, as charged in counts 10, 11, and 12, from this trial.    Her vigorous cross-

examination of the state’s witnesses revealed the deficiencies in the use of cell-tower data.

After reviewing the entire record, and in light of our resolution of the second assignment

of error, we hold that counsel’s efforts were not deficient, and that Sweeting was not

prejudiced in any way. The result of the trial was reliable and fundamentally fair. The

third assignment of error is overruled

                IV. Sufficiency and Weight-of-the-Evidence Claims

       {¶18}    In his fourth assignment of error, Sweeting challenges the weight and

sufficiency of the evidence adduced at trial to support his convictions. Sweeting

argues that there was little physical evidence linking him to the robberies, that the

videotape evidence of the robberies did not permit a clear identification of Sweeting

as the perpetrator, and that data indicating that his cellular phone had been used

near the robbery sites was equivocal at best.

       {¶19}    But the state presented ample evidence to support the convictions.

The state introduced the videotapes of the Twigg’s Carryout and the Food Mart

robberies showing a perpetrator that matched Sweeting’s description using a firearm

to obtain cash. Data of usage from Sweeting’s cellular telephone placed him near the

scene of the robberies at the time the offenses had occurred. The clothing that he


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was wearing during the robberies was nearly identical to clothing that Sweeting wore

in his Facebook profile images. That clothing was found inside his home, and on his

person when taken into custody. The handgun that Sweeting was carrying when

arrested had the same extended magazine as the handgun wielded by the perpetrator

in the robbery videos. Sweeting stipulated that he had a prior conviction that had

placed him under a disability.

       {¶20}   We note that direct and circumstantial evidence inherently possess

the same probative value. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph one of the syllabus. Thus while there were inconsistencies in

witnesses’ testimony and the evidence adduced at trial, the weight to be given that

evidence and the credibility of the witnesses were for the jury, acting as the trier of

fact, to determine in resolving conflicts and limitations in the testimony. See State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Our

review of the entire record fails to persuade us that the jury clearly lost its way and

created such a manifest miscarriage of justice that the convictions must be reversed and a

new trial ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997). The jury was entitled to reject Sweeting’s theory that the state had failed to

adduce anything more than circumstantial evidence to prove he had committed the

robberies.

       {¶21}   Moreover, the record reflects substantial, credible evidence from which

the jury could have reasonably concluded that all elements of the charged crimes had been

proved beyond a reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, ¶ 36. The fourth assignment of error is overruled.




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                         OHIO FIRST DISTRICT COURT OF APPEALS



             V. Consecutive-Sentencing & Postrelease-Control Errors

        {¶22}     Finally, Sweeting contends that his aggregate sentence was contrary to law

because the trial court failed to make the findings required by R.C. 2929.14(C)(4) before

imposing consecutive sentences. He also calls this court’s attention to the fact that the

trial court had failed to provide postrelease-control warnings at sentencing.

        {¶23}     The sentencing court’s compliance with R.C. 2929.14(C)(4) involves a

three-step process that flows from the statute. See State v. Alexander, 1st Dist. Hamilton

Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 13, 15, and 16. Although the court is not

required to use “talismanic words” to comply with the statutory-findings requirement, the

trial court satisfies the requirements of R.C. 2929.14(C)(4) when the record reflects that

the court has engaged in the required analysis and has selected the appropriate statutory

criteria. Id. at ¶ 16.

        {¶24}     Consecutive sentences imposed without the findings required by R.C.

2929.14(C)(4) are contrary to law and must be vacated. State v. Cowins, 1st Dist.

Hamilton No. C-120191, 2013-Ohio-277, ¶ 36.

        {¶25}     Here, the trial court ordered Sweeting to serve each imposed prison term

consecutively. The state concedes, and we have confirmed, that the trial court failed to

make the findings to support these consecutive sentences. The consecutive sentences

were thus contrary to law and we must vacate them. Cowins at ¶ 37.

        {¶26}     We also agree that the trial court failed to provide Sweeting with

postrelease-control warnings at the sentencing hearing. The trial court was statutorily

required to provide Sweeting with postrelease-control warnings as part of his sentences

for each of his first- and third-degree felony offenses. See R.C. 2929.19(B)(2)(c)-(e); see

also State v. Kennedy, 1st Dist. Hamilton No. C-120337, 2013-Ohio-4221, ¶ 119. The trial

court’s failure to comply with the statutory postrelease-control notification requirements

after imposing prison terms for those felony offenses renders that part of those sentences



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void. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. The

fifth assignment of error is sustained.

                                          VI. Conclusion

       {¶27}    Therefore, we vacate that portion of the trial court’s judgment ordering

that the sentences for aggravated robbery and having a weapon under a disability as

charged under counts one, three, seven, and nine be imposed consecutively. The matter is

remanded to the trial court for it to consider whether consecutive sentences for those

offenses are appropriate under R.C. 2929.14(C), and if so, to make the proper findings on

the record.    Further, the trial court must provide Sweeting with the appropriate

postrelease-control notifications. Finally, the sentencing entry mistakenly indicates that

Sweeting had pleaded guilty to the charged offenses. The trial court should correct this

matter when resentencing Sweeting.

       {¶28}    In all other respects we affirm the trial court’s judgment.

                                                                     Judgment accordingly.

HENDON, P.J., and DEWINE, J., concur.



Please note:

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




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