[Cite as State v. Gordon,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103494

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEANDRE GORDON DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-594287-A and CR-15-596591-A

BEFORE: Kilbane, P.J., McCormack, J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 18, 2016 ATTORNEY FOR APPELLANT

David L. Doughten David L. Doughten Co. L.P.A. 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Eleina Thomas Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:

{¶1} Defendant-appellant, Deandre Gordon (“Gordon”), appeals from his

convictions and sentence for aggravated robbery, kidnapping, and felonious assault

following a joint trial in Cuyahoga C.P. Nos. CR-15-594287-A and CR-15-596591-A.

For the reasons set forth below, we reverse the judgment in CR-15-594287-A and remand

the matter for a retrial in this case.

{¶2} In March 2015, Gordon was charged in CR-15-594287-A with two counts of

aggravated robbery, two counts of felonious assault, and one count of kidnapping. Each

count carried one- and three-year firearm specifications. The charges allege that Gordon

robbed Tevaughn Darling (“Darling”) at gunpoint. In June 2015, Gordon was charged in

CR-15-596591-A with intimidation of a witness. The charges allege that Gordon posted

on social media an edited version of Darling’s statement to the police, making him look

like a snitch. Darling received threats because of the video.

{¶3} In June 2015, the state of Ohio (“state”) filed a motion to join these two cases

and a motion to disqualify Gordon’s retained defense counsel. The state argued that the

cases should be joined because the offenses are connected and part of the same criminal

conduct. The state also argued that Gordon’s defense counsel should be disqualified

because he would be a material witness in the intimidation case. The trial court granted

the state’s joinder motion and disqualified defense counsel. The two cases then

proceeded to a jury trial. The following evidence was adduced at the joint trial. {¶4} Darling testified that on Friday, January 9, 2015, he celebrated his 36th

birthday with Gordon, his girlfriend, Terri Buckner (“Buckner”), and other friends. 1

Darling has known Gordon since 2002 and thinks of him as his nephew. Upon returning

home, Darling noticed that his car had been ransacked and his windows were broken,

which was common in his neighborhood.

{¶5} Darling invited Gordon to stay over his house. Gordon stayed the remainder

of the weekend through Monday afternoon. On Sunday, the two of them made a $1,500

bet on a football game. Darling won the $1,500. Gordon did not have the money to pay

Darling. He told Darling that he needed money. Darling testified that Gordon did not

have any money while they were celebrating his birthday. Darling paid for his birthday

celebration in cash. Darling works in cash businesses, rehabbing houses, junking cars,

and scrapping. On some days, he would make $2,500 a day scrapping cars.

{¶6} On Monday, January 12, 2015, Buckner took Darling’s car to get it repaired.

After Buckner left, only Darling and Gordon were in the house. At approximately 5:00

p.m., Gordon asked Darling what he was going to do for him. Darling said he would

give Gordon some money. His plan was to give Gordon $1,000 from the bet and keep

$500. Gordon then went into the bathroom and came out wearing a hood and carrying a

.45 caliber gun. Darling testified that this did not concern him because Gordon always

had a .45 caliber gun on him. Gordon told Darling to “give me everything you got.” At

1 Darling testified that he has been convicted of drug conspiracy and drug trafficking charges. first, Darling thought Gordon was joking. Gordon then shot Darling in the foot and

dragged him from the kitchen into a back bedroom. Gordon took $5,000 out of Darling’s

dresser drawer and approximately $2,300 out of Darling’s pocket. Gordon threatened to

kill Darling if he told anyone about the incident. Gordon then stole Darling’s rental car,

which the police located 0.7 miles from Darling’s house.

{¶7} Darling then called Buckner to take him to the hospital. When speaking with

police officers at the hospital, Darling told them that he was carjacked. The police

investigated and found no evidence of a carjacking or a shooting. Darling testified that

initially he lied to the police because he did not want to get Gordon in trouble and deal

with the consequences of snitching on Gordon, who is a member of the “Loyal Always”

gang.

{¶8} Darling testified that he changed his mind and decided to tell the police that

Gordon shot him and took his money and the rental car. Darling made a statement,

which was recorded, to Detective Glenn Daniels (“Detective Daniels”) of the Bedford

Heights Police Department. When Detective Daniels asked Darling where they could

locate Gordon, Darling responded, “[h]e runs with the gang Loyal Always.”

{¶9} Darling further testified that a video of his recorded statement to the police

was posted on Instagram on or about May 21, 2015. The video was edited to make it

appear as though he was telling the police information about the Loyal Always gang when

he was not. Darling received numerous threats as a result of this video being posted on

Instagram. Darling told the prosecutor and the Bedford Heights Police Department about this video. After meeting with the prosecutor, Darling observed Gordon in his car in the

parking lot. Gordon rolled down his window and yelled to Darling, “Mr. Officer, Mr.

Officer.” Darling interpreted Gordon’s comments as being called a snitch. Darling also

testified about photos and Facebook comments calling him a rat.

{¶10} Buckner testified that she, Darling, Gordon, and other friends went out on

Friday, January 9, 2015, to celebrate Darling’s birthday. Darling spent a large amount of

cash that night. When they returned home, they noticed that the windows to Darling’s

car were broken. She further testified that Gordon spent the weekend with her and

Darling. On Monday, January 12, 2015, around 5:00 p.m., she left Darling and Gordon

to get Darling’s car repaired. She left a rental car at their home. Approximately

one-half hour later, she received a call from Darling telling her that she needed to take

Darling to the hospital because Gordon shot him in the foot. When she got home, she

observed blood smeared across the floor from the kitchen to the back bedroom. Buckner

took Darling to the emergency room. She told the police the same version of events that

Darling initially told the officers.

{¶11} Buckner also testified about the Instagram post of Darling’s statement. She

was afraid because they were snitching and snitches get killed. She testified that

Gordon’s friends were in the Loyal Always gang and she feared they would hurt them

both as a result of the Instagram video.

{¶12} Detective Daniels testified that he was assigned to Darling’s case. As part

of his investigation, he presented Darling with a photo array, where Darling selected Gordon as his assailant. The police also went to Darling’s home where they discovered

a shell casing that was consistent with that of a .45 caliber handgun. Detective Daniels

took a video-recorded statement from Darling. Detective Daniels provided the

prosecutor with a copy of Darling’s statement. Gordon’s retained defense counsel

testified that on or about May 20, 2015, he showed Darling’s recorded statement to

Gordon during a private meeting between defense counsel and Gordon.

{¶13} On May 27, 2015, Detective Daniels received several phone calls from

Darling stating that there is an edited version of his statement to the police that was

posted on Instagram on May 22, 2015. The video appears to be a cell phone recording

of Darling’s statement. Darling indicated to Detective Daniels that he was afraid for his

life and this Instagram video has ruined his life. Detective Daniels requested

information from Facebook about the video, but he could not identify the source of the

post. Detective Daniels testified about the Loyal Always gang. He acknowledged that

he is not a gang expert, but has basic knowledge of the gang. He testified that the Loyal

Always gang is an offshoot of the former LA Gunners gang. The LA Gunners were

raided by the ATF in 2008 because of an investigation into various criminal activity,

including murder, firearm violations, rape, assaults.

{¶14} At the conclusion of trial, the jury returned a verdict of guilty of all counts

of the indictment, including the firearm specifications in Case No. CR-15-594287-A (two

counts of aggravated robbery, two counts of felonious assault, and one count of kidnapping). The jury found Gordon not guilty of the charge of intimidation in Case No.

CR-15-596591-A.

{¶15} That same day, the court proceeded to sentencing. The court merged

Counts 1 and 2 (aggravated robbery) and Counts 4 and 5 (felonious assault) for purposes

of sentencing. The court then proceeded to sentence Gordon on Counts 1, 3, and 5. On

each of Counts 1 and 3, the court sentenced Gordon to four years in prison on the

underlying offenses, plus the one- and three-year firearm specifications. On Count 5, the

court sentenced Gordon to three years in prison on the underlying offense, plus the one-

and three-year firearm specifications. In accordance with R.C. 2929.14(B)(1)(g), the

court ordered that the two most serious firearm specifications be served consecutive to

each other and the underlying offenses in Counts 1, 3, and 5. The court further ordered

that the underlying offenses in Counts 1, 3, and 5 be served concurrently to one another

for an aggregate of ten years in prison.

{¶16} Gordon now appeals, raising the following five assignments of error for

review, which shall be discussed together where appropriate.

Assignment of Error One

The trial court erred by allowing prejudicial joinder of the charge of intimidation to offenses under CR-15-594287.

Assignment of Error Two

The trial court erred by permitting witnesses to provide prejudicially irrelevant testimony which allowed the jury to base its verdict on matters other than evidence of the actual offense charged.

Assignment of Error Three The trial court erred by failing to find the convicted offenses to be allied pursuant to R.C. 2941.25(B).

Assignment of Error Four

The convictions are against the weight of the evidence.

Assignment of Error Five

Defense counsel’s failure to object to an improper joinder and to the admission of prejudicially irrelevant testimony deprived the defendant of his right to effective assistance of counsel.

Joinder

{¶17} In the first assignment of error, Gordon contends that the trial court erred

when it allowed the joinder of the intimidation charge to the offenses in his robbery case.

Specifically, Gordon argues the joinder of these cases violated his ability to retain his own

counsel under the Sixth Amendment. He additionally argues that the inclusion of

gang-related testimony unfairly allowed the jury to consider matters other than whether

Gordon shot Darling and base its convictions on otherwise excluded evidence. Because

Gordon was acquitted in the intimidation case (CR-15-596591-A), our discussion focuses

on the robbery case (CR-15-594287-A).

{¶18} We initially note that because Gordon failed to object to the joinder of the

indictments, he has waived all but plain error. State v. Saade, 8th Dist. Cuyahoga Nos.

80705 and 80706,

, ¶ 12. Under Crim.R. 52(B), notice of plain error is

to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice. State v. Long,

,

(1978), paragraph three of the syllabus. In order to find plain error under Crim.R. 52(B), it must be determined that, but for the error, the outcome of the trial clearly would have

been otherwise.

at paragraph two of the syllabus.

{¶19} Crim.R. 8 governs joinder of offenses and provides:

(A) Joinder of offenses. Two or more offenses may be charged in the same indictment * * * if the offenses charged * * * are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.

{¶20} In addition, Crim.R. 13 provides in pertinent part:

The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information.

{¶21} Thus, under Crim.R. 8(A) and 13, two or more offenses can be tried together

if the offenses are of the same character, based on connected transactions, or are part of a

course of conduct. State v. Lott,

,

(1990).

{¶22} However, Crim.R. 14 requires separate trials if it appears that a criminal

defendant would be prejudiced by such joinder. The defendant bears the burden of

demonstrating both prejudice and that the trial court abused its discretion in denying

severance of the indictments. State v. Kirk, 8th Dist. Cuyahoga Nos. 95260 and 95261,

, ¶ 31, citing State v. Coley,

,

,

; State v. LaMar,

,

,

;

Saade, 8th Dist. Cuyahoga Nos. 80705 and 80706,

.

{¶23} Based on the unique circumstances of this case, we find that Gordon was

prejudiced as a result of the joinder. We note that Gordon was not prejudiced by the introduction of the gang-related testimony. Rather, Gordon was prejudiced and his

constitutional right to counsel was violated when the trial court removed his originally

retained defense counsel from his robbery case and ordered Gordon to proceed to trial

with a different defense counsel.

{¶24} Gordon was charged in this case on March 26, 2015. Nearly three months

later, on June 11, 2015, Gordon was charged in another case with the intimidation of a

witness — Darling. Then on June 29, 2015, the state filed a motion to join these two

cases and a motion to disqualify Gordon’s originally retained defense counsel. The state

argued that Gordon’s defense counsel should be disqualified because he would be a

material witness in the intimidation case. The trial court granted the state’s joinder

motion and disqualified defense counsel. After the trial court granted the joinder,

Gordon’s originally retained counsel was forced to be removed from the robbery case as

he was a material witness to the intimidation case. Defense counsel, however, was not a

material witness to the robbery case.

{¶25} While the law generally favors the joining of multiple offenses if the

offenses are of similar character, in the instant case, we are presented with the unique

circumstance in which the joinder of the indictment prevented the defendant from

retaining counsel of choice. The separation of these two cases, which were indicted

three months apart, would have allowed Gordon’s originally retained counsel to represent

Gordon on his robbery case. The Sixth Amendment, as made applicable to the states

through the Fourteenth Amendment, guarantees the accused in a state criminal trial the right to counsel. Faretta v. California,

,

,

(1975); Von Moltke v. Gillies,

,

,

(1948). Once

Gordon’s originally retained counsel was removed from the robbery case, Gordon

sustained prejudice that outweighed the benefits of the joinder. Therefore, we find that

the trial court committed plain error by joining the two cases for trial.

{¶26} Accordingly, the first assignment of error is sustained.

{¶27} In the remaining assignments of error, Gordon challenges the admission of

the gang-related evidence; allied offenses; the manifest weight of the evidence; and the

effectiveness of his new counsel. However, our disposition of the first assignment of

error renders these assigned error moot. App.R. 12(A)(1)(c).

{¶28} Judgment is reversed in Case No. CR-15-594287-A, and the matter is

remanded for a retrial in this case.

It is ordered that appellant recover of appellee 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 common

pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., CONCURS; TIM McCORMACK, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)

TIM McCORMACK, J., DISSENTING:

{¶29} While the Sixth Amendment encompasses a defendant’s right to be

represented by one’s counsel of choice, that right is not unqualified. State v. Keenan,

,

(1998). A criminal defendant only has a

presumptive right to be represented by his or her chosen counsel,

, and

the right is circumscribed in several important respects. Wheat v. United States,

,

,

(1988). In particular, the presumption

may be overcome by a demonstration of actual or serious potential conflict.

, citing

. {¶30} Here, a reading of the record indicates Gordon had retained two defense

counsel, the first one shortly after he was indicted and the second one a day before the

robbery victim reported the Instagram incident to the police. The state moved for

joinder of trial and also moved to disqualify his first counsel because counsel was a

material witness on the intimidation case. Gordon opposed the motion to disqualify

counsel, arguing counsel was not a necessary witness in the intimidation case. He did

not object to the joinder, nor did he object to the disqualification of counsel on Sixth

Amendment grounds.

{¶31} The courts have recognized a trial court’s wide latitude in balancing the

right to counsel of choice against the needs of fairness. United States v.

Gonzalez-Lopez,

,

,

(2006). See also

State v. Boone,

,

(1st Dist. 1995) (the right to

counsel must be considered along with the need for the efficient and effective

administration of criminal justice). Here, Gordon has not demonstrated, either at trial or

on appeal, prejudice resulting from the disqualification of his first counsel. I would

defer to the trial court’s discretion in its balancing of the needs for efficient and effective

administration of justice against fairness to the defendant in its decisions granting joinder

and disqualifying counsel. For these reasons, I respectfully dissent from the majority’s

decision. The remaining assignments of error should be addressed.