State v. Bush, Unpublished Decision (3-23-2001)
State v. Bush, Unpublished Decision (3-23-2001)
Opinion of the Court
On December 29, 1999, Robert Choates entered his apartment building. While climbing the stairs to his third-floor apartment, he was robbed at gunpoint by an assailant wearing a ski mask. The perpetrator ordered Choates to get on the floor and then took his money. Choates then observed the perpetrator rob Anthony Oats on another stair landing. Oats was also ordered to the floor at gunpoint and robbed of eighty dollars and his identification card. After the robbery, Oats fled and summoned police. Oats testified that he had seen Bush with another building tenant before he was robbed. Oats later identified Bush in a police lineup.
After the state rested, the court granted Bush's Crim.R. 29 motions for a judgment of acquittal on the two counts naming him as the perpetrator of the Choates robbery. In his defense, Bush and his mother then testified that he was caring for her at her home when the crimes were committed. The trial court acquitted Bush of the aggravated robbery of Oats, but convicted him of robbery in violation of R.C.
In his third assignment of error, Bush contends that the trial court sentenced him without considering the purposes of felony sentencing and without making the felony-sentencing findings required by statute. See,e.g., R.C.
The record certified for review does not demonstrate that the trial court satisfied the mandates of Am.Sub.S.B. No. 2, effective July 1, 1996. The trial court did not complete a felony-sentencing worksheet and make it part of the record. See R.C.
On the state of this record, a reviewing court cannot fulfill its obligation to "review the record, including the findings underlying the sentence * * * given by the sentencing court." R.C.
In his fourth assignment, Bush claims that the trial court erred by failing to inform Bush, at the time of sentencing, of the potential for "post-control release" following his release from prison. Bush correctly notes that when imposing a prison term for a felony of the second degree, the trial court "shall * * * notify the offender that a period of post-release control pursuant to section
Bush's first and second assignments of error, in which he claims error based upon the absence of a written jury waiver from the record, are overruled, as, pursuant to App.R. 9(E), the record has been corrected to reflect a nunc pro tunc entry of the jury waiver signed by Bush before his bench trial. See State v. Wallace (Dec. 10, 1999), Hamilton App. No. C-980314, unreported.
Bush also challenges the trial court's erroneous entry of a judgment that stated, inter alia, that he had entered pleas of no contest. This assignment of error is also overruled, as, pursuant to App.R. 9(E), the trial court has corrected the record to reflect that it granted Bush's motions for a judgment of acquittal on counts three and four, and that, following a bench trial, Bush was acquitted on count one, but was convicted on count two. The seventh assignment of error is overruled.
In two interrelated assignments of error, Bush challenges the weight and the sufficiency of the evidence adduced to support his conviction for robbery. Our review of the entire record fails to persuade us that the trial court, sitting as 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. See Tibbs v. Florida (1982),
Furthermore, the trial court did not err in denying Bush's motion for a judgment of acquittal on the charge of robbery, as reasonable minds could have reached different conclusions as to whether each element of the crime had been proven beyond a reasonable doubt, including that Bush robbed Oats at gunpoint. See Crim.R. 29; see, also, State v. Bridgeman
(1978),
In the last assignment of error, Bush's appointed counsel raises six "improprieties" that he believes are not meritorious, but that Bush maintains were prejudicial to him. The state also urges this court to "review the entire record in accordance with" the no-error doctrine ofAnders v. California (1967),
Therefore, pursuant to the resolution of the third assignment of error, the sentence imposed by the trial court is vacated, and the cause is remanded for resentencing in accordance with law and this Decision.
Gorman, P.J., Sundermann and Winkler, JJ.
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