original - supreme court of ohioappellant lamark r. shaw on one count of kidnapping, r.c....

ORIGINALIN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee

V.

LAMARK R. SHAW,

Defendant-Appellant.

29On Appeal from the MontgomeryCounty Court of AppealsSecond Appellate District

Court of AppealsCase No. 24263

AMENDED MEMORANDUM OF APPELLANTLAMARK R. SHAW IN SUPPORT OF JURISDICTION

DARRELL L. HECKMAN #0002389Attomey at LawHarris, Meyer, Heclcman & Denkewalter, LLCOne Monument Square, Suite 200Urbana, Ohio 43078(937) 653-7186Fax (937) 653-3293Email: [email protected]

COUNSEL FOR APPELLANT LAMARK R. SHAW

CARLEY J. INGRAM # 0020084Attorney at Law301 W. Third Street, 5th FloorP.O. Box 972Dayton, Ohio 45422-0972(937) 225-5757Fax (937) 496-6555

COUNSEL FOR APPELLEE STATE OF OHIOFLEB

OCT 17 2011

v FE DOCT 1 t'2oi

CLERKOFCOURTSUPREME COURT OF OHIO

I

CLERK OF COURTI SUPREME CCi3RT CF OP1IC 1

TABLE OF CONTENTS

PAGE

EXPLANATION OF WHY THIS CASE IS A CASE 3

OF PUBLIC OR GREAT GENERAL INTEREST AND

WHY LEAVE TO APPEAL SHOULD BE GRANTED

STATEMENT OF THE CASE AND FACTS 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW 5

PROPOSITION OF LAW NO. 1

Displaying a purported firearm, standing alone, is not sufficient evidence to establish the

operability of the firearm

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

5

6

6

APPENDIX PAGE

Opinion of Montgomery County Court of Appeals 7

(September 16, 2011)

Judgment Entry of the Montgomery County Court of Appeals 20

(September 16, 2011)

2

EXPLANATION OF CASE IS OF GREAT PUBLIC OR GREAT GENERAL INTEREST AND

WHY LEAVE TO APPEAL SHOULD BE GRANTED

This case presents the court with an opportunity to revisit its 21 year-old holding in State

v. Murphv (1990) 49 Ohio St.3d 206, 551 NE.2d 932. In Murphy a divided court held that

operability of a firearm could be inferred solely from threatening the victim.

Firearm specifications under R.C.2929.14 are a major contributing factor to prison

overcrowding. The specification of 6 years, 3 years, or 1 year are especially significant in that

they may not be suspended, nor reduced for good time. Specifications are served day for day

before the sentence for the underlying offense begins. Offenses which are probationable without

a firearm specification are not probationable with the specification.

Robbers are known to use all manner of inoperable firearms (see appendix). It is time to

review the holding of Murphy, adopt the dissent therein, and limit imprisonment for firearm

specifications to those proven to have used operable firearms.

3

STATEMENT OF THE CASE AND FACTS

A. STATEMENT OF THE CASE

On May 11, 2010 the Grand Jury of Montgomery County, Ohio indicted defendant

Appellant LaMark R. Shaw on one count of kidnapping, R.C. 2905.01(A)(1) with a firearm

specification.

Ajury heard the case on August 17-19, 2010 and on August 19 found the defendant

guilty of the charge and the specification.

On September 2, 2010 the trial court journalized its termination entry sentencing Mr.

Shaw to three years for the gun specification and 6 years on the kidnapping charge to be served

consecutively.

Mr. Shaw's trial counsel filed a timely notice of appeal on his behalf on September 15,

2010. The court of appeal affirmed the trial court on September 16, 2011 and this timely appeal

follows:

B. STATEMENT OF RELEVANT FACTS

Olivia Anderson testified that on April 1, 2010 defendant along with two others abducted

her [T166] at gunpoint, kept her for three hours and then released her in a secluded area.

Mr. Ronnie Gullatte confirmed that he saw a woman abducted at gunpoint [T139], and

placed in a car trunk at the time and the place Ms. Anderson testified to.

No gun was introduced into evidence and no testimony was given that the alleged gun

was operable, or actually fired.

4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1

Displaying a purported firearm, standing alone, is not sufficient evidence to establish the

operability of the firearm

Criminal laws defining offenses and penalties are to be strictly construed against the State

and in favor of the accused. R.C. 2901.04(A).

The burden of proof as to each element of all crimes is beyond a reasonable doubt. R.C.2901.05.

A firearm is defined under R.C. 2923.11(A) as follows:

"(A) Any deadly weapon capable of expelling or propelling one or moreprojectiles by the action of an explosive or combustible propellant. "Firearm"includes an unloaded firearm, and any firearm that is inoperable but that canreadily be rendered operable.

(B) When determining whether a fireann is capable of expelling orpropelling one or more projectiles by the action of an explosive or combustiblepropellant, the trier of fact may rely upon circumstantial evidence, including butnot limited to, the representation and actions of the individual exercising controlover the firearni."

Under the foregoing definition it is obvious that all of the following are not fireanns: a

pellet gun, stun gun, paintball gun, cap gun, water pistol, inoperable guns, and finger in a jacket

pocket. Yet all of these objects have been used by criminals to commit robberies, kidnappings,

and other offenses. See for example United States v. Koonce, 991 F.2d 693 (11'h Circuit 1993),

People v. Thorne, (2004) 352 Ill App.3d 1062, 817 NE.2d 1163 (bb gun) Wilson v. State, (2002)

823 So.2d 855 (cap gun); State v. Matthews, (1974) 67 Ohio Opinions 2d 190, 322 Ne.2d 289

(starter pistol) (held not to be a firearm under Ohio law); State v. Dve, (1968), 14 Ohio App.2d 7,

235 NE.2d 250 (toy gun).

5

Under the definition of reasonable doubt there was not sufficient evidence, indeed there

was no evidence, that the shotgun in question was real, operable or capable of being readily

rendered operable. Threatening a person with an object does not prove the object works.

Counsel eagerly adopts the dissenting opinion of Justice Sweeny in State v. Murphy infra as the

most compelling and eloquent argument counsel can make.

6

CONCLUSION

The court should accept the case and reverse the conviction as to the 3 year fireann

specification.

Respectfully submitted,

HARRIS MEYER, HECKMAN& DENKEWALTER, L.L.C.

Darrell L. Heckman #0002389Harris, Meyer, Heckman & Denkewalter, LLCOne Monument Square, Suite 200Urbana, Ohio 43078{937) 653-4478Fax (937) 653-3293Email: [email protected] for Appellant

PROOF OF SERVICE

A copy of the foregoing pleading was sent by ordinary mail to Carley J. Ingram,

Assistant Prosecuting Attorney, P.O. Box 972, Dayton, Ohio 45422-0972 on this 13th day of

October, 2011.

Darrell L. Heckman

8

IN THE COURT OF APPEAZ,S OF MCNTGOMERY COL'NTY, OHIO

STATE OF OHIO

Plaintiff-AppelleeC.A. CASE NO. 24263

vs. T.C. CASE NO. 1OCR1161

LAMARK R. SHAW . (Criminal Appeal from

Defendant-Appellant Common Pleas Court)

O P I N I O N

Rendered on the 16th day of September, 2011.

Mathias. H. Heck, Jr., Pros. Attorney; Kirsten A..Brandt, Asst.Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton,Ohio 45422

Attorney for Plaintiff-Appellee

Darrell L. Heckman, Atty. Reg. No. 0002389, One Monvment Square,Suite 200, Urbana, Ohio 43078

Attorney for Defendant-Appellant

VUKOVICH, J. (BY ASSIGNMENT) :

Defendant-appellant Lemark Shaw appeals from his conviction

in Montgo:nerv County Comr.:on Pleas Court for first=degree felony

kidnapping and the attached firearm specification.. Shaw asserts

three arguments for reversal. First, he contends tha t the

evidence was insufficient to establish the elements of the

firearm specification, specifically that the firearm was

operable. Second, appellant argues that the trial court erred

when it failed to instruct the jury on second-degree felony

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

(o2

kidnapping. The last argument appe3.lant assert.s is that the

trial court erred when it allowed a typed copy , of appellant's

written statement to be admitted into evidence.

For the reasons expressed belovr, we find no merit with

appellant's arguments. Accordingly, the judgment of the trial

court is hereby affirmed.

STATEMENT OF THE FACTS AND CASE

On May 11, 2010 appellant was indicted by the Montgomery

County Grand Jury for kidnapping, a vialation of 2905.01(A)(1),

a first-degree felony and a firearm specification, a violation of

R.C. 2941.145.

The case proceeded to a jury trial. At trial, the evidence

established that on April 1, 2010, a friend of appellant's was

carjacked by a Devin Garrett, aka Nuke. Later that day, Olivia

Anderson, Nuke's girlfriend, was kidnapped at gunpoint outside of

her residence. Her hands and feet were tied, she was gagged, a

sheet placed over her head and she was put in the trunk of the

kidnappers' car. While in the trunk, the kidnappers talked to

her through the open console in the backseat and pointed the gun

at her. They asked her where her boyfriend was and wanted his

cellular phone number.

The victim indicated that the kidnappers took her to a place

that she believed was a house. They continued to ask about

Garrett and even started asking about her parents. They wanted

$50,000 to release her. She told them that she was pregnant with

Garrett's baby and that her parents had disowned her. While it


LI

was t-rue that she was pregnant, herparents had not disowned her.

Still she refused to give them information on Garrett or her

parent's, because she did not want Garrett or her parents to be

put in danger. Eventually the kidnappers became irate with

Anderson and they punched her in the stomach, the gun was put in

her mouth and cocked and she was told they were going to kill

her.

After a couple hours she was placed back into the car. She

was then taken to a secluded area calle:d.The Learni:zg Tree, where

the kidnappers removed her from the car with the sheet still on

her head. They told her not to remove the sheet or they would

kill her, then they drove away.

After they left, she removed the sheet and began looking for

help. She was able to get one of the people living in the area

to call the police. A deputy was sent to the area around The

Learning Tree, found Anderson and observed that she was bleeding.

She was then taken to a hospital where she refused medical

treatment. Days after the kidnapping, she was shown a

photographic lineup and she identified appellant as the kidnapper

with the gun.

During trial, it was established that appellant met with

Detective Lawson, from the City of Dayton Police Department and

provided a confession that he was one of Anderson's abductors.

However at trial, he asserted that he lied to Detective Lawson

and that when he gave his statement to her, he was under the

influence of drugs and alcohol. He also offered witnesses to


Ia

confism his aileged alibi-.

At the conciusion of the evidence, the jury.found himguilty

of the charge and the specification. The trial court sentenced

him to six yearsfor the kidnapping conviction=and three years

for the firearm specificaltion. The sentences were ordered to be

served consecutively.

FIRST ASSIGNMENT OF ERROR

"THE EVIDENCE OF OPERABILITY OF A FIREARM WAS INSUFFICIENT

TO SUSTAIN A CONVICTIOA7 AS A MATTER OF.LAW,"

The relevant inquiry for appellate review of a sufficiency

of the evidence argument is whether any rational fact finder,

viewing the evidence in a light most favorable to the state,

could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Dennis (1997), 79 Ohio St.3d

421, 430, citing Jackson v. Virginia (1979), 443 U.S. 307, 319.

A guilty verdict will not be disturbed on appeal unless

"reasonable minds could not reach the conclusion reached by the

trier-of-fact." Id. at 430.

R.C. 2941.145 permits imposition of a mandatory three year

prison term where the indictment specifies, and the jury finds:

"* * * that the offender had a firearm on or about the

offender's person or under the offender's control while

committing the offense and displayed the firearm, brandished the

firearm, indicated that the offender possessed the firearm, or

used it to facilitate the offenses."


R.C. 2923,11(B=) defines "firearm" and provides:

"(1) 'Firearm' means any deadly weapon capab-le of expelling

or propelling one or more projectiles by the action of an

explosive or combustible propellant. 'Firearm' inc2udes an

unloaded firearm, and any firearm that is inoperable but that can

readily be rendered operable.

"(2) When determining whether a firearm is capable of

expelling or propelling one or more projectiles by the action of

an explosive or combustible propellant, the trier of fact may

rely upon circumstantial evidence, including, but not limited to,

the representations and actions of the individual exercising

control over the firearm."

The Ohio Supreme Court has held that:

"The state must present evidence beyond a reasonable doubt

that a firearm was operable at the time of the offense before a

defendant can receive an enhanced penalty pursuant to R.C.

2929.71(A) [prior firearm specification statute]. However, such

proof can. be established beyond a reasonable doubt.by the

testimony of lay witnesses who were in a position to observe the

instrument and the circumstances surrounding the crime." 'State

v. Murphy (1990), 49 Ohio St.3d 206, syllabus.

Consequently, the state is not required to admit into

evidence the firearm used during the commission of the crime in

order to establish the firearm specification; both the firearm's

existence and its operability may be inferred from the

surrounding facts and circumstances. State v. Vann, Montgomery


App. No. 22818, 2009-0h3o-5308, 127 citing Muzpny, supra. In

MurPhy, the Ohio Supreme Court concluded that there was

sufficient evidence to establish proof beyond a reasonable doubt

that the defendant possessed a firearm and that firearm was

operable when the evidence at trial established that the

defendant entered a store with a gun described as a one or two

shot derringer, the defendant announced he was robbing the store,

he pointed a gun at the store clerk and stated he would kill the

clerk if the clerk did not give him money. Murphy, siapra.

Considering facts similar to Murphy, this court has

consistently found that there is sufficient evidence for the jury

to infer the operability of the firearm even when the firearm is

not admitted into evidence. State v. Branigan, Montgomery App.

No. 23593, 2010-Ohio-5745; State v. Leftwich, Montgomery App. No.

223383, 2009-Ohio-5044; State v. Melton, Montgomery App. No.

22591, 2009-Oh3.o-535. We have stated that "a victim's belief

that the weapon is a gun, together with the intent on the part of

the accused to create and exploit that belief for his own

criminal purposes, 3.s sufficient to prove a firearm

specification." Vann, supra, at $27, citing State v. Greathouse,

Montgomery App. No. 21536, 2007-Ohio-2136. See, also, State v.

Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304; State v. Thompkins,

78 Ohio St.3d 380, 1997-Ohio-52.

In the case at hand, Ronnie Gullatte, who witnessed the

abduction, testified at trial that the abductor had a gun. Tr.

138. Gullatte described the gun as a big gun, a rifle or AK-47


15type:rifle. Tr. 140-141. In appellatit's handwritten statement

he statedthat a gun was used by Little Johnny Boy during the

kidnapping and that it was a camouflaged sawed off shotgun. Tr.

271, 376, 381. Anderson also testified that a gun was used in

her abduction. Tr. 163. She stated that while she was in trunk

of the car the gun was pointed at her through the open console.

Tr. 166-167. She indicated that at one point during the

kidnapping the gun was put in her mouth, it was cocked several

times, and.the kidnappers told her they were going to kill her if

they did not get what they asked for. Tr. 171-176. Considering

these facts and all of the above cited case law from this

district and the Ohio Supreme Court, there was sufficient

evidence from which the jury could infer that the firearm was

operable. Accordingly, this assignment of error lacks merit.

SECOND ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON

THE OFFENSE OF INFERIOR DEGREE OF SECOND DEGREE FELONY

KIDNAPPING."

R.C..290b.01(A)(1) states that no person by force or threat

"shall remove another from the place where the other person is

found or restrain the liberty of the person" for purposes of

holding that person for ransom. A violation of R.C.

2905.01(A)(1) is a first-degree felony, except when the victim is

released in a safe place unharmed. R.C. 2905.01(C)(1). in that

instance, the violation of (A)(1) would be a second-degree

felony. R.C. 2905.01(C)(1).


i^Although the safe place unharmed provisi.on aiitigates an

o-ffender!s criminal culpability, it is not an element of

kidnapping, but rather must be treated the same as an affirmative

defense. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,

1233. -See, also, State v. Carrodl, Cuyahoga App. No. 93938,

2010-Ohio-6013, 113; State v. Bankston, Franklin App. No. 08AP-

668, 2009-Ohio-754, 116. Thus, it is the defendant's burden to

prove.

After the state closed its case, appellant made a statement

that he might want a jury instruction on second-degree felony

kidnapping. Tr. 295. The trial court indicated that such an

instruction would be allowed if the evidence warranted it, but

the court stated that it would wait until the end of the

presentation of evidence before deciding whether such instruction

was warranted. Tr. 296. After the defense rested its case-in-

chief, the state indicated.that it did not believe, conside.ring

the evidence produced at trial, that an instruction on second-

degree felony kidnapping was warranted. Tr. 388-348.

In response to that argument defense counsel made the

following statement:

"`Just in response. I think that is correct. The defense

did not put forth any evidence tending to show that as a- and

the reason is the defense didn't have any witnesses that could

testify as to what exactly happened to Ms. Anderson prior to the

kidnapping, during the kidnapping and after the kidnapping, Your

Honor. Thank you." Tr. 389.


I -i--

The trial court, however, did not rule on whether a second-

degree felony kidnapping instruction was warranted until after

the state's rebuttal witness. At that point it stated:

"Very well. The Court, during the break, 'had taken another

look at the affirmative defense and would note for the record

that the Court •considered the fact that the evidence can be

considered from the State's case without any evidence regarding

that by the - produced by the Defendant.

"However, because the evidence is uncontroverted that the

victim was struck and - without going into what the injuries

might have been, either minor or otherwise, because the evidence

is uncontroverted that the victim was struck and, accordingly,

not released unharmed, the Court finds that there could be no

preponderance of the evidence argument made by the Defendant in

that regard. And we are not including it in the charge." Tr.

395.

Appellant never objected to this determination.

As there was no objection, appellant waives all but plain

error. Plain error exists only where it is clear that, but for

the error, the result of the trial would have been different.

State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, $52.

The Eighth Appellate District has found plain error in the

situation where an appellant did not request a jury instruction

on second-degree felony kidnapping but the evidence warranted

such instruction. Carrol.Z, supra. In coming to that conclusion,

our sister district indicated that while Carroll did not


10introduce evidence that the victim was released in a sa£epiace

unharmed; the state's evidence could be used to establish such an

affirmative defense. Id. at 4115. In Carroll, the witnesses that

testified at tria^. stated that Carroll threatened to hurt them_,

however, none of the witnesses avowed that he actually inflicted

any harm upon them. Id. They.indicated that once the events

were over, Carroll fled. Id. Carroll also testified that he had

no intention of hurting the victims. Id.

Appellant insists that the case at hand is simi.lar.to

Carroli. We disagree. Anderson testified that she was pregnant,

she was punched in the stomach by her kidnappers and she

miscarried. Tr. 173, 179. It is true that she did not accept

medical treatment and there is no clear medical evidence produced

at trial to confirm that the punch caused the miscarriage. Tr.

179. Regardless of the outcome of the punch, it cannot logically

be concluded that a person is left unharmed when that person is

punched. Likewise, it is also noted that she testified that she

had red marks on her wrists and feet. Tr. 178. The deputy who

found her also stated that he observed that she was bleeding from

her right hand. Tr. 223. Thus, there is evidence`of harm.

' Furthermore, we note, just as the trial court did, that all

of that evidence is uncontroverted. Appellant offered no

evidence to show that Anderson was unharmed when she was

released. Accordingly, considering the evidence, the trial

court's conclusion that there could be no preponderance of the

evidence argument made by appellant that the victim was released.


Iqil

in a safe-place unharmed does not amount to plain error. This

assignment of error lacks merit.

THIRD ASSIGNMENT OF ERROR

"THE TRIAL COURT ERREDIN ADMITTING OVER OBJECTION TESTIiIONY

OF A CLAIMED TYPED COPY OF.A WRITTEN CONFESSION."

Appellant was interviewed by Detective Lawson and proceeded

to give her a written statement. Detective Lawson testified

about the written statement and read it into the record.

However, instead of reading from the original written statement,

she read from a transcribed copy. This was allegedly done

because appellant's handwriting is hard to decipher. Appellant

objected. Tr. 275-276.. The trial court overruled the objection

based on the interest of time that it would take`to read the

handwritten statement. The trial court then stated thatany

issue with the transcript could be remedied by submitting both

the written statement and that transcribed copy to the jury for

them to determine whether the transcription was an accurate copy.

Tr. 276.

When the state moved to admit its exhibits it did not mark

or move for the admission of the transcribed copy of the

statement. Tr. 297. Following appellant's case-in-chief,- the

state noted that the transcribed copy was not admitted into

evidence. Tr. 387. The trial court gave appellant the option of

whether he wanted it admitted into evidence. Tr. 387-388.

Appellant objected to the admission, which was sustained by the

trial court. Tr. 388.

TF-

THE COURT OF APPEALSOF OHIOSECOND APPELLATE DISTRICT

12

D.espite the wording of the assignment of error, appellant

does not clearly argue that Detective Lawson was not permitted to

read from the transcribed copy during her testimony. Rather, his

argument is that "the jury should have been given the aatual

confession only, without the claimed transcript." As is shown

above, this argument fails because the factual premise it is

based on is not accurate. The jury did not view the transcript;

only the written confession was admitted into evidence.

Regardless, it cannot be concluded that the detective

reading a transcript of appellant's written statement amounted to

reversible error. As the state indicates, this court has

previously approved the procedure of submitting to the jury a

transcript of an audio taped conversation to use as a listening

aid during trial, so long as the transcript is not admitted.

State v. Rogan (1994), 94 Ohio App.3d 140, 153-155, citing State

v. Waddy (1992), 63 Ohio St.3d 424, 445-446. The transcript was

used in the case at hand as an aid in deciphering a difficult to

read handwritten statement and, as such, is similar to the use of

the transcript in Rogan. Consequently, the Rogan holding is

applicable in this case.

Furthermore, the detective's rendition of the written

statement was substantially accurate. Appellant read his hand

written statement into the record during his testimony. Tr. 371-

373. A comparison of his testimony to that of the detective's

indicates that the detective's version is an accurate reflection

of the typed statement. Tr. 277-278, 371-373. While there are


sla.̂ ght va-iations, such as slight alterations for readability,

those variations axe at the most minor and do not change the

substance of the confession. Consequently, based onRogan and

the accuracy of the transcript, use of the transcript did not

amount to reversible error. This assignment of error lacks

merit.

CONCLUSION

All three assignments of error lack merit. Therefore, the

judgment of the trial court is hereby affirmed.

FAIN, J.. And DONOVAN, J., concur.

(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Courtof Ohio.)

Copies mailed to:

Kirsten A. Brandt, Esq.Darrell L. Heckman, Esq.Hon. Gregory F. Singer


D^a1

IN THE-COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NO. 24263

vs. T.C. CASE NO. 10CR1161

LAMARK R. SHAW FINAL ENTRY

Defendant-Appellant

Pursuant to the- opinion of this court rendered on the

September day of 16th , 2011, the judgment of the trial

court is Affirmed. Costs are to be paid as provided in App,R.

24.

...^-^^^ ^^^-'^ t- .°--' G,r ^-•_MARY E. ]QONOV.}W, JUDGE

J. VUIAOVICH, JUDGE( $Y`- ^AS S I GNMENT )

(Hon. Joseph J. Vukov.ich, Seventh District Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Courtof Ohio.)


0'3Copies mailed to:

Kirsten A. Bre.ndtAsst. Pros. AttorneyP.O. Box 972Dayton, Ohio 45422

Darrell L. Heckxnan, Esq.One Monument SquareSuite 200Urbana, Ohio 43078

Hon. Gregory F. Singer


original - supreme court of ohioappellant lamark r. shaw on one count of kidnapping, r.c....

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