[Cite as State v. Baker,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25828

v. : T.C. NO. 11 CR 4317/2

LARRY BAKER : FINAL ENTRY

Defendant-Appellant :

:

..........

OPINION

Rendered on the 18th day of July , 2014.

..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

FROELICH, P.J.

{¶ 1} Larry Baker was found guilty by a jury in the Montgomery County

Court of Common Pleas of four counts of murder, one count of aggravated robbery, and one

count of felonious assault, each with a firearm specification. After merger of some of the 2

counts, Baker was sentenced to two consecutive terms of 15 years to life on each of two

counts of murder, and to three additional years on each of two firearm specifications, to be

served consecutively to each other and to the sentence for the murders; the aggregate prison

term was 36 years to life. Baker appeals, raising three assignments of error.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

{¶ 3} All of the offenses relate to a robbery and shooting at the Cash and Go pawn

shop on December 22, 2011. Baker and two accomplices, Darren Taylor and Anthony

Dewayne McClain, were alleged to have driven to the pawn shop from Detroit that morning

and to have robbed the shop and shot its employee, Ilya Golub. Golub returned fire, striking

McClain, but the three alleged perpetrators managed to flee and returned to Detroit. Golub

and McClain died from their gunshot wounds.

{¶ 4} Baker was later charged with four counts of murder (two as a proximate

result of aggravated robbery, and two as a proximate result of felonious assault), two counts

of aggravated robbery with a deadly weapon, and two counts of felonious assault with a

deadly weapon. Each count included a firearm specification. Baker was tried by a jury on

June 2013, and was convicted on all counts.1 The four counts of which Golub was the

victim (two counts each of murder, aggravated robbery, and felonious assault) were merged,

and the two counts of murder related to McClain were merged. As discussed above, Baker

was sentenced to an aggregate term of 36 years to life.

1 Taylor was charged with the same offenses, as well as having weapons while under disability; he was also convicted on all counts. We affirmed the convictions in State v. Taylor, 2d Dist. Montgomery No. 25764,

. [Cite as State v. Baker,

.] {¶ 5} Baker raises three assignments of error on appeal. His first two assignments

challenge the weight and sufficiency of the evidence, and we will address them together.

{¶ 6} An argument based on the sufficiency of the evidence challenges whether

the State has presented adequate evidence on each element of the offense to allow the case to

go to the jury or to sustain the verdict as a matter of law. State v. Thompkins,

,

(1997). Under a sufficiency analysis, an appellate court does not

make any determinations regarding the credibility of witnesses. State v. Goff,

,

(1998), citing State v. DeHass,

,

(1967), paragraph one of the syllabus. “An appellate court’s function when reviewing

the sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Jenks,

,

(1991), paragraph two of the

syllabus.

{¶ 7} In contrast, when reviewing an argument challenging the weight of the

evidence, “‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered. The discretionary

power to grant a new trial should be exercised only in the exceptional case in which

evidence weighs heavily against the conviction.’”

, quoting State v.

Ohio App.3d 172, 175,

(1st Dist. 1983).

{¶ 8} Where an appellate court determines that a conviction is not against the

manifest weight of the evidence, the conviction is necessarily based on legally sufficient

evidence. State v. Million, 2d Dist. Montgomery No. 24744,

; State

v. Combs, 2d Dist. Montgomery No. 19853,

.

{¶ 9} The State established the following facts at trial.

{¶ 10} On Thursday, December 22, 2011, Baker, Taylor, and McClain had cell

phone conversations in the early morning hours and departed together from Detroit in

Taylor’s green and tan Pontiac Astro van. They drove to the Dayton area and parked a short

distance from the Cash and Go pawn shop on Salem Avenue. Ilya Golub opened the shop

at 9:00 a.m, and Taylor entered the shop. Baker and McClain entered the establishment

about five minutes after Taylor; Baker carried a backpack. Video surveillance tapes showed

that, after Baker and Taylor walked up and down the aisles of the shop, the men converged

near the counter and confronted Golub. Taylor shot Golub several times at close range.

Golub managed to return fire as the men were leaving the shop, striking McClain.

{¶ 11} The three men ran to the van, turned it around on a side street, and drove on

Salem Avenue toward Interstate 75. A man who had been eating breakfast at a restaurant

across the street from the pawn shop saw the three men run from the shop and enter the

green Astro van, but he was unsure which man was driving. He ran to his car and followed

the van until it entered the highway. He then returned to the pawn shop and gave the van’s

Michigan license plate number to sheriff’s deputies, who had arrived at the scene. Several

witnesses testified that a silver gun was on the ground in the pawn shop parking lot. 5

{¶ 12} Another employee of the pawn shop testified that he had arrived for work a

few minutes late on December 22, 2011, and found the door “busted” (the glass had been

shot out) and Golub on the floor behind the counter with a gun in his hand; Golub was not

moving. The employee testified that Golub was known to carry a gun in the store and that

the store kept large amounts of cash in a safe to facilitate loans. No testimony was offered

about what, if anything, was taken from the pawn shop.

{¶ 13} The deputies broadcast a description of the van; they also recovered the

revolver from the parking lot and spent casings from in and around the pawn shop and from

the exterior of the building across the street. They discovered that the van was registered to

Taylor.

{¶ 14} Sherri Webb, a cousin of Taylor and an emergency medical technician in

Michigan, testified that she received a series of phone calls from Taylor on December 22,

2011, beginning at approximately 10:00 a.m. Taylor stated that his friend had been shot,

and Webb provided Taylor with instructions on performing CPR and information about the

locations of hospitals along Interstate 75 in Ohio and Michigan along the route to Detroit.

Taylor later told Webb that he “dumped Wayne” (McClain) on Kirby Street in Detroit.

Webb testified that Kirby was not far from I-75. Webb contacted the police in an effort to

save McClain (although she did not know his identity at the time).

{¶ 15} At approximately 1:10 p.m. on December 22, 2011, McClain’s body was

found in an alley near 609 East Kirby Street in Detroit, with bullet wounds in the elbow and

upper back.

{¶ 16} Fatimah Muhammad, one of Taylor’s girlfriends, testified that Taylor came 6

to her house around 3:00 p.m. on December 22, and entered through the back door, which

was unusual. Her garage was about 15 feet from the back door. She testified that Taylor

was very upset when he came in, and was crying, but that he did not stay long. He was

picked up by someone in a red SUV, and went to an appointment with his parole officer.

She never saw him or the red SUV again. She later learned that the red SUV belonged to

Baker.

{¶ 17} By the afternoon of December 22, the Montgomery County Sheriff’s Office

was working with a cellular service provider to obtain information about the real-time

location of two phones associated with Taylor. The sheriff’s department asked the

Southfield, Michigan, police department to set up surveillance on Taylor, and it informed the

Southfield police that Taylor might be at a certain address. The Southfield police

recognized this address as a parole office and responded to that address while Taylor was

still in the building. While Taylor was being arrested at the parole office, his cell phones

received several incoming calls from “Larry.”

{¶ 18} On December 23, 2011, Montgomery County Sheriff’s Office detectives,

working in conjunction with the Michigan State Police, used cell phone records to identify a

connection between Taylor and “Larry” (Baker), and they obtained a photograph of Baker.

When this photograph was compared with the video from the pawn shop robbery, Baker was

identified as a suspect, and a search warrant was obtained for his home on Santa Rosa Drive

in Detroit. McClain’s wallet was found under a mattress in the home, but Baker’s location

was unknown at that time. A warrant was issued and he was arrested at his home in

February 2012. 7

{¶ 19} Also on December 23, Taylor’s van was found parked inside the garage at

Muhammad’s home. An atlas, cleaning supplies, rags, and a lottery ticket were found in the

van. Muhammad, who did not store a car in her garage, testified that she had been unaware

that Taylor’s van was parked in her garage until the police arrived. A large red stain was

present on the second row of seats inside the van, some of which appeared to have been

bleached. Muhammad testified that she had ridden in the van on Wednesday, December 21,

and the cleaning supplies, the blood stain, and the lottery ticket had not been in the van at

that time.

{¶ 20} The lottery ticket found in the van was purchased on December 22, 2011, at

1:04 p.m. The ticket led the Michigan State Police to a lottery terminal at a CVS in Detroit,

four to five blocks from Kirby Street. Surveillance videos from the CVS at the relevant time

showed two men drive into the parking lot in a 1995 Pontiac minivan matching the

description of the van involved in the pawn shop robbery; surveillance video inside the store

also showed Baker, dressed in the same clothing as in the pawn shop video, purchasing a

lottery ticket. The other man stayed in the van, which remained in the CVS parking lot

while Baker was in the store.

{¶ 21} Montgomery County Sheriff’s Office Detective Patrick O’Connell testified

that he had tracked the activities and location of the cell phone towers off of which Taylor’s,

McClain’s and Baker’s cell phones had “pinged” the morning of December 22, 2011. He

documented that the men had exchanged phone calls during the night and that, beginning

shortly after 4:40 a.m., the coordinates of their travel had generally followed a path from

Southfield, Michigan to Santa Rosa Avenue in Detroit (Baker’s residence), south along I-75 8

to Toledo and on to Dayton, where there was a ping 1/4 mile from the pawn shop, and then

north again along I-75 to Detroit and a location near Kirby (where McClain’s body was

dumped), to the area of Muhammad’s house, and then to the parole office.

{¶ 22} An inmate who spent some time in the same pod with Baker at the

Montgomery County Jail testified that, in talking about why he was in jail, Baker had

described “[being] on a roll” from Detroit when he committed a robbery involving a

shoot-out. According to the fellow inmate, Baker claimed that he had only been driving the

car and that the “other two dudes” did the shooting.

{¶ 23} DNA linked to McClain and Baker was found on the gun in the pawn store

parking lot. DNA evidence found on the steering wheel and driver’s door of the Astro van

belonged to Taylor. The blood on the second seat of the van belonged to McClain.

{¶ 24} The forensic pathologist who conducted the autopsy of McClain testified

that, based on his injuries, McClain could have run a short distance after he was shot. He

also testified that McClain would likely have survived the “tension pneumothorax” that

killed him, if he had received treatment.

{¶ 25} Baker did not call any witnesses at trial. His attorney did not deny that

Baker had made the trip from Detroit to Dayton with his friends or that he had been present

at the robbery and shooting; the defense asserted that Baker had been a mere bystander

during the robbery and had not known that the other men intended to rob the pawn shop.

{¶ 26} The jury was instructed on complicity and aiding and abetting, as well as the

principal offenses with which Baker was charged. It was further instructed that “[t]he mere

presence of an accused at the scene of the crime and the fact that he was acquainted with the 9

perpetrator is not sufficient proof in and of itself that he was an aider or abettor.” It was

also correctly instructed that it could rely on direct and/or circumstantial evidence, and that it

could infer facts from other facts that had been proven by the evidence.

{¶ 27} The record contains substantial competent, credible evidence upon which the

jury could have reasonably concluded that Baker conspired with, assisted or encouraged

Taylor and McClain in the robbery of the pawn shop. If Baker was involved with the

robbery in any of these ways, it makes no difference who held or fired the gun(s) used in the

offense; he would be equally guilty of robbery and murder. See R.C. 2923.03; State v.

Letts, 2d Dist. Montgomery No. 15681,

, * 4 (June 22, 2001); State v.

Cochran, 3rd Dist. Marion No. 9-81-30,

, * 5 (May 19, 1982).

{¶ 28} As stated above, the credibility of witnesses and the weight to be given the

evidence are primarily for the trier of fact; the jury is free to believe all, part, or none of the

testimony of each witness who appears before it. It is also permitted to draw reasonable

inferences from the evidence presented. The jury chose to believe the State’s version of the

facts. Baker’s conviction was supported by sufficient evidence, and we cannot say that the

jury clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed.

{¶ 29} The first and second assignments of error are overruled.

{¶ 30} In his third assignment of error, Baker asserts that he was denied the

effective assistance of counsel because 1) counsel lacked basic knowledge regarding the

motion to suppress; 2) counsel had ineffective communication with the jury and discussed

incorrect standards with the jury, and 3) counsel “frustrated the trial court” throughout the 10

proceedings.

{¶ 31} We review alleged instances of ineffective assistance of trial counsel under

the two prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley,

,

(1989). Pursuant to those cases, trial counsel is entitled to

a strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his or her errors were serious enough to create

a reasonable probability that, but for the errors, the result of the trial would have been

different.

{¶ 32} With respect to the motion to suppress, which concerned the search warrant

for Baker’s residence, Baker identifies only one example of counsel’s alleged “lack of basic

knowledge”: a question asked by defense counsel at the suppression hearing of a witness

from the Michigan State Police. Defense counsel asked the witness to describe what

information she had with respect to Baker’s involvement in the robbery and murder before

seeking a search warrant for his home. The State argued that the affidavit in support of the

search warrant was beyond the scope of the issues raised in the motion to suppress and the

“four corners” of the warrant, and its objection to the question was sustained. According to

Baker, this question showed defense counsel’s lack of understanding of the holding in

Franks v. Deleware,

,

,

(1978). Counsel’s

next question, which asked what information the witness had received from Montgomery 11

County pertaining to Baker’s involvement in the “incident,” was allowed.

{¶ 33} Counsel’s question did not, on its face, evince a lack of understanding of the

law with respect to search warrants or motions to suppress. Moreover, there is no evidence

in the record to suggest that the facts of this case supported a challenge to the affidavit

underlying the search warrant. As such, there is no basis to conclude that counsel’s failure

to file a more expansive motion to suppress (based on Franks) demonstrated counsel’s

ineffectiveness or met either prong of Strickland.

{¶ 34} Baker also asserts that counsel displayed a lack of knowledge and

“ineffective communication” during jury selection. Although he cites pages of the

transcript, Baker does not otherwise present an argument as to how counsel acted

ineffectively. On one of the cited pages, defense counsel commented to the prospective

jurors about how they would want a defense attorney to provide zealous representation “if

your son was sitting there” as a defendant; the court sustained the State’s objection to the

comment. At another point, defense counsel asked prospective jurors whether they thought

they (the jurors) “should be accountable for the conduct of two other individuals that are not

you” or of whose actions they were unaware. Again, the State’s objection was sustained in

open court. These examples may demonstrate that defense counsel was attempting, during

voir dire, to suggest the defense’s theory of the case (that Baker was an unknowing

bystander to the robbery) and to ensure that prospective jurors would be capable of

separating the acts of an unknowing bystander from criminal conduct of his companions;

they do not demonstrate that defense counsel appeared incompetent to the jury or that he

acted in a manner that prejudiced Baker in the eyes of the potential jurors. The cited pages 12

do not demonstrate representation that fell below an objective standard of reasonableness.

{¶ 35} Baker also cites a section of the transcript wherein the parties and the court

were in chambers discussing challenges for cause. After defense counsel stated that he did

not have any challenges for cause that had not already been addressed by the State, the court

raised a question as to Juror # 27, who “said he was 50 yards away when [the robbery]

happened. He was there when the investigation occurred” and “walked up.” The judge

asked, “Does that cause any hair to raise on anybody’s back?” Defense counsel then asked

that Juror # 27 be stricken for cause. Although defense counsel had previously passed on

objections to the juror, the court “let [him] re-open” and challenge the juror for cause. The

court pointed out that neither party had questioned the juror during voir dire on that issue, so

that it would be more clear whether the juror could be “fair and impartial.” The court then

overruled the challenge for cause.

{¶ 36} We agree with the trial court that the record does not establish that there

was any basis to strike Juror # 27. Although defense counsel might have questioned the

juror more extensively about his presence near the scene of the crime and his observations

there, defense counsel could have reasonably concluded that the prospective juror’s

observations after the event were unlikely to have had any bearing on Baker’s guilt. This is

especially true since anything the juror might have seen occurred after the shootings, and

those events were not in dispute. There is no basis to conclude that defense counsel was

ineffective in failing to question Juror # 27 further or in failing to take the initiative to strike

him.

{¶ 37} Finally, Baker contends, without any specific references or allegations of 13

prejudice, that trial counsel was ineffective because he was “cantankerous” and “frustrat[ed]

the trial court.” Having thoroughly reviewed the record, we find no support for this

assertion.

{¶ 38} Baker has not demonstrated that he was denied the effective representation

of counsel.

{¶ 39} The third assignment of error is overruled.

{¶ 40} The judgment of the trial court will be affirmed.

..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French Elizabeth C. Scott Hon. Dennis J. Adkins