[Cite as State v. Herring,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104441

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KRYAN B. HERRING DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595823-A

BEFORE: S. Gallagher, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: March 2, 2017 ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Aqueelah A. Jordan Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Kryan Herring appeals from a verdict finding him guilty of aggravated

burglary, two counts of robbery against separate victims, disrupting public service, grand

theft, domestic violence, and endangering a child. Herring also challenges as excessive

the resulting prison sentence of 19.5 years from consecutive service of the individual

sentences — nine years on the aggravated burglary, six years on the robbery, and 18

months each on the disrupting telephone service, grand theft, and domestic violence

convictions. We affirm the judgment of the trial court.

{¶2} The victim had a relationship with Herring in the past, and the two

maintained contact afterwards. The couple had a child together, who lived with the

victim. The victim also had two other children. Herring and the victim got into an oral

argument one night in April 2015, but Herring left the victim’s home without any

incident. He returned the next morning in an attempt to get the keys to his car. Herring

believed that the victim was hiding his keys, and he viciously attacked her when she told

him otherwise. One of the children, Herring’s child in fact, tried to intercede but only

managed to have Herring push her aside, although the child described it as being

punched. The children testified that Herring did not live in the house, and everyone

confirmed that Herring did not have keys to or possessions in the residence. Herring also

did not have any keys to the victim’s car that he took; the keys he used belonged to the

victim. {¶3} While Herring was beating her, the victim tried to call the police, but Herring

interceded. The victim threw the phone to her 8-year-old daughter who tried to call the

police. Herring grabbed the phone from the child. It is unclear what happened to the

phone. The victim ran from the house and called the police from a neighbor’s residence.

During that time, Herring stole the victim’s car and fled the scene.

{¶4} After the police arrived and took the victim to the hospital for treatment,

Herring returned to the house while the older, teenaged daughter was home. Herring

broke into the house by kicking through the back door. Herring again began searching

through the victim’s belongings for his car keys. Herring left before the daughter could

summon help.

{¶5} Herring was arrested on May 7, 2015, and the arraignment was scheduled for

June 10. Although the docket reflects that Herring was not in custody before the

arraignment, the state assumed he was in custody between May 7 and the June 10

arraignment; 102 speedy-trial days occurred. Herring absconded after June 10 and was

not brought into custody until October 29, 2015. On November 5, the state filed a

demand for discovery, and 24 more speedy-trial days occurred. Nothing in the record

indicates when Herring answered discovery. Nevertheless, Herring requested several

continuances before the pretrial conference was finally held on February 25, 2016, and

another pretrial conference was set for March 3, which actually occurred on March 10

because of Herring. Another 21 triple-counted days were added to the ongoing tally.

The March 14 trial date was pushed back for two weeks upon Herring’s request, leading to 54 additional days. At the end of March, the trial court became unavailable, and as a

result, trial did not commence until April 4. Twenty-four days were added to the final

tally. Giving Herring the benefit of every doubt, only 225 days counted toward the

state’s 270-day limit between arrest and trial. Herring turned down the state’s offer to

plead guilty to grand theft and domestic violence with all other charges, including the

aggravated burglary, to be nolled.

{¶6} At trial, the victim’s children testified that Herring did not live at their home.

The victim testified last. Despite what she had told police officers, the victim claimed

that Herring lived with her and the children. Out of the jury’s presence, the trial court

inquired into the victim’s testimony, demonstrably put off by the victim’s failure to timely

appear for trial and for claiming Herring lived with her despite the unequivocal evidence

to the contrary. The trial court reminded the victim of her oath and the consequences of

perjury and allowed the state an opportunity to privately discuss the situation with the

victim. Upon returning to the record, still outside the presence of the jury, it was

determined that during trial, Herring had used another inmate’s phone privileges to give

out the victim’s telephone number. The victim told the court she had lied about Herring

living with her because people were contacting her telling her to do so in order to create

doubt as to the aggravated burglary charge. The trial court allowed the state to recall the

victim, who then told the jury what had transpired and that Herring did not live with her.

The recorded jail-house calls were played to demonstrate why the victim originally lied. Herring unsuccessfully objected, claiming that the recorded calls violated Evid.R. 404(B)

and recalling the witness was a violation of his due process rights.

{¶7} This timely appeal followed, in which Herring advanced seven assignments

of error.

{¶8} Herring claims his federal and state constitutional rights to a speedy trial were

violated because he was arrested in May 2015 and trial did not commence until April

2016. Such an argument is unpersuasive because it ignores the significant tolling that

was attributed to Herring’s failure to appear at his arraignment and his repeated requests

for continuances of court dates after he was brought into custody at the end of October

2015. The state had 270 days to commence trial. R.C. 2945.71(C)-(E). At best,

considering the tolling events and Herring’s disappearance, only 225 days counted toward

that limit.

{¶9} Further, ignoring the delay in bringing Herring into custody after the missed

arraignment, less than 12 months transpired from his May 2015 arrest until the April 2016

trial under the federal speedy trial analysis. State v. Winn, 8th Dist. Cuyahoga No.

98172,

, citing Doggett v. United States,

,

,

(1992) (defendant must make a threshold showing of

presumptively prejudicial delay before triggering any further analysis, presumptively

prejudicial being defined as a period of one year). Herring’s trial occurred in a timely

fashion. {¶10} At trial, the victim initially told the jury that Herring lived with her at the

house, despite the children testifying to the contrary. The victim’s testimony was

fabricated. It was determined that Herring violated a no-contact order and had others

contact the victim inducing her false testimony. The trial court allowed the state to recall

the victim to the stand to correct her testimony and allowed the state to play the jail-house

recordings to explain the victim’s action to the jury.

{¶11} Herring claims that the recorded conversations violated Evid.R. 404(B) and

403 because the state did not have a legitimate basis for allowing the admission of the

evidence. Herring solely relies on the dissenting opinion in State v. Carter, 8th Dist.

Cuyahoga No. 90796,

, as authority requiring the exclusion of the

recordings. We are bound to follow the majority analysis from Carter — that telephone

recordings painting the offender in a bad light are admissible for other legitimate

purposes under Evid.R. 404(B). The cited authority supports the trial court’s decision to

admit the evidence, and Herring has not presented any reasons for us to distinguish or

seek en banc review of Carter.

{¶12} Evid.R. 404(B) states the following:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. at ¶ 39. The evidence, in this case, was presented not to prove bad character of the

accused or that he acted in conformity with that character, but for the purpose of explaining to the jury why the victim lied about Herring’s living situation. State v.

Williams,

,

,

. Herring has not

demonstrated that the evidence was unduly prejudicial; his sole focus was that the

evidence was introduced to prove conformity with other uncharged conduct.

{¶13} Furthermore, as Herring conceded, there is no error in merely warning a

witness of the consequences of perjury. United States v. Stuart,

(6th

Cir. 2007). The victim ultimately testified at trial despite Herring’s actions, and the

testimony was corroborated by the victim’s children. The trial court’s admonishment

about the consequences of perjury only prejudiced Herring insomuch as his attempt to

illegally induce contrary evidence was unsuccessful. The trial court did not err when it

warned the victim of the consequences of her false testimony.

{¶14} And finally on this issue, not every out-of-court statement implicates the

Confrontation Clause as Herring claims. See, e.g., State v. Montgomery, Slip Opinion

No.

. Herring’s sole argument regarding the victim’s testimony

that implicated Herring in violating the no-contact order through third parties wrongly

presumes the existence of a per se rule that excludes any reference to another’s statement

at trial. In this case, the victim referenced the fact that other persons contacted her on

Herring’s behalf to explain to the jury why her recall testimony differed from her direct

examination. We find no error.

{¶15} Herring next seeks to overturn his convictions for aggravated burglary,

robbery, grand theft, and disrupting public service as being against the sufficiency or the manifest weight of the evidence. According to Herring, (1) the victim and he had a

relationship, so the state needed to prove Herring lacked permission to enter the house;

(2) he accidentally beat the victims and that deprived the state of evidence of an intent to

cause serious physical harm for the robbery counts; (3) he sometimes had permission

borrow the victim’s car at some indefinite point in time, so the car was not actually stolen

on April 29, 2016; and (4) he did not violate the disrupting public services statute because

“there is no evidence that he was disrupting phone services as contemplated by the

statute.”

{¶16} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins,

,

,

. In reviewing a sufficiency challenge,

“[t]he 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.

{¶17} The sufficiency of the evidence arguments are without merit. R.C.

2911.21(A) defines criminal trespass, the underpinnings of an aggravated burglary

charge, as remaining on the premises of another without the privilege to do so, and

nothing in the record indicates Herring had permission to remain in the home as he beat

the victim, even if the trier of fact believed he was initially allowed to enter. There is

ample evidence that the vicious attack on the victim was not accidental. The victim testified that Herring did not have permission to take her car after the beating, so the

children’s testimony that Herring sometimes was seen driving her car in the past is

irrelevant to the events on April 29, 2015. And finally, Herring has not presented any

supporting authority, as required under App.R. 16(A)(7), for his conclusion that R.C.

2909.04(A)(1) does not contemplate his conduct as being criminal. Appellate courts are

not obligated to formulate legal arguments on behalf of the parties. Risner v. Ohio Dept.

of Natural Resourses,

,

,

. Upon our

review of the arguments as presented, we can only conclude that the evidence presented at

trial sufficed.

{¶18} When reviewing a claim challenging the manifest weight of the evidence,

the court, reviewing the entire record, must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in the evidence, 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.

Thompkins at 387. Reversing a conviction as being against the manifest weight of the

evidence should be reserved for only the exceptional case in which the evidence weighs

heavily against the conviction. Id.

{¶19} We decline the request to undertake our own extensive, independent review

of the evidence to determine whether this is that exceptional case in light of the limited

nature of the argument advanced in a single paragraph of appellate briefing that glosses

through 300 pages of transcribed trial testimony. Herring claims that this case “boils down to a dispute between two people who were in a relationship and had a child

together. There was an altercation and injuries but the record does not fairly support

convictions for burglary, robbery, grand theft or disrupting public service.” Herring has

not addressed the crux of the state’s case, in which the state demonstrated that although

invited into the home, Herring’s invitation was revoked when he viciously attacked the

victim and her children, stole her car after the beating and while the police were being

summoned, and then returned when the victim was in the hospital with only her teenaged

daughter in the home. Herring has not demonstrated a basis for us to conclude that a

manifest miscarriage of justice occurred.

{¶20} With respect to the arguments advanced challenging the aggregate sentence,

Herring claims his robbery conviction, with the indictment identifying the victim’s

daughter as the person against whom the robbery was committed, should have merged

with the aggravated burglary conviction under the Ohio Supreme Court’s analysis in State

v. Ruff,

,

,

. Burglary and robbery are

committed as separate acts under the Ruff analysis; burglary is typically completed upon

entering the premises. State v. Jackson, Slip Opinion No.

; see

also State v. Anthony,

,

, ¶ 72-73 (8th Dist.) (S. Gallagher,

J.,dissenting). Although aggravated burglary includes the element of some form of harm

to a person present in the home, Herring ignores the holding in Ruff that a crime

committed against separate victims is considered of dissimilar import as a matter of law.

Ruff at second paragraph of the syllabus. We need not dwell on the differences between burglary and the aggravated form of the crime. The aggravated burglary count in this

case was predicated on the intent to commit a robbery against the victim. The robbery

count was based on Herring’s act of assaulting the victim’s daughter while committing or

attempting a theft offense, after completing the act of entering or remaining in the home

with the intent to commit a criminal act and causing serious physical harm to the victim.

The robbery with the daughter as the named victim and the aggravated burglary were

committed by assaulting separate victims and by separate acts. The two crimes are not

allied offenses of similar import. Ruff.

{¶21} Finally, Herring’s sentence is not contrary to law. The 19.5 years of prison

imposed in this case was a product of consecutive service of the individual prison terms.

Herring’s argument against the aggregate sentence, however, is based on injecting the

R.C. 2929.11 and 2929.12 analysis of sentencing factors into review of the consecutive

sentencing. The notion that trial courts must rely on R.C. 2929.11 and 2929.12 in

considering consecutive sentences under R.C. 2929.14(C)(4) is without merit. State v.

Jones, 8th Dist. Cuyahoga No. 104152,

, citing State v. Kirkman,

8th Dist. Cuyahoga No. 103683,

. Although a trial court may

consider the sentencing factors for the purposes of making the findings for consecutive

sentences under R.C. 2929.14(C)(4), the court is not required to do so and an appellate

court cannot weigh the individual sentencing factors in order to overturn the imposition of

consecutive service.

Appellate review is limited. R.C. 2953.08(G)(2). {¶22} There is no argument that the findings were not made or that the findings

were clearly and convincingly not supported by the record. The sole focus in this appeal

is on the sentencing factors and how an appellate review of those factors would lead us to

the conclusion that concurrent terms would have sufficed. The standard of appellate

review over the imposition of consecutive sentences is whether this court can clearly and

convincingly find that the record does not support the findings. R.C. 2953.08(G)(2).

Our review is not to determine whether the sentencing factors under R.C. 2929.11 or

2929.12 weigh in favor of concurrent terms. The review Herring seeks is statutorily

precluded and, therefore, overruled.

{¶23} The only other arguments with regard to the aggregate sentence advanced on

appeal was that the 19.5 years were disproportionate to Herring’s conduct and the danger

he posed to the public because the state offered a maximum of 36 months on domestic

violence and grand theft charges during plea negotiations. Proportionality under R.C.

2929.14(C)(4) refers to the offender’s conduct and the danger he poses to the public, not a

negotiated plea offer. A trial court need not consider the terms of a rejected plea offer in

considering the proportionality of consecutively served sentences.

{¶24} Further, the state’s plea offer came before the jury found Herring guilty of

seven counts, a far more extensive set of crimes than those of the plea deal, before the

trial court learned of Herring’s extensive history of felony convictions, 16 felony

convictions in 15 years in Cuyahoga County alone, and before Herring’s attempt to

intimidate a witness during trial, which was discovered by the state during trial two days after Herring was recorded on another prisoner’s jail phone account giving others the

victim’s telephone number and asking those persons to contact the victim. Herring has

not addressed the change in circumstances that occurred from the plea offer to the final

sentencing, his extensive history of criminal conduct, or the fact that the guilty plea

involved only two crimes. Even if we could consider the plea offer as a legitimate

starting point for the proportionality analysis, it would only be a starting point and not the

sole consideration.

{¶25} The convictions and consecutively imposed sentences are affirmed.

It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS; MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION

MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART: {¶26} I concur with the majority decision except with regard to the following

issues.

{¶27} The basis for the aggravated burglary count is unclear. During Herring’s

Crim.R. 29(A) motion, the state very clearly told the court that the aggravated burglary

was premised on the second incident in which Herring kicked the door open and entered

the house:

THE COURT: Which episode is the State pursuing here as burglary?

[THE PROSECUTOR]: It would be the second episode, your Honor, where he kicks in the door. Yes, as it’s listed in the indictment, it initially talks about [the victim], but it’s clear from the date, April 29th, the defendant is put on notice of a property that he’s attempting to enter which is clear from the indictment. And the fact that harm was present when you kick in a door and enter a home. And you heard [the daughter] testify that she didn’t know what he was going to do, she tried to call grandma, she talked to grandma on the phone. She didn’t want to let him in the house. And she testified to hearing this kick, kick, kick at the door and then seeing the door fly in. That’s more than sufficient to establish that count, your Honor.

Tr. 318-319.

{¶28} However, during closing argument to the jury, the state referenced both

incidents as the basis for the aggravated burglary:

How did the defendant get into that occupied structure? Well, at first, [the victim] lets him in, but there comes a point in time when she no longer wants him there and she tries to get him out. And the point that she tries to get him out is the point that he remains on and at that point he is trespassing. But we can take that step forward because he comes back a second time and he kicks in the door after he’s put out the first time eventually.

Tr. 328. {¶29} Not only did the state confuse when the aggravated burglary occurred, it

confused the underlying felony. Count 1 of the indictment charged that Herring

trespassed in the home with the intent to commit a robbery. The state had this to say

about it in closing argument:

With purpose to commit in this structure a criminal offense. What does the defendant do while he is in the home? Well, the first time he’s in the home, we know he punches [the victim] in her face. We know he’s pushing and shoving her. We know he leaves the home with her car keys, her cell phone, and her car. All of which are criminal offenses. We know while he’s in the home, he keeps [the victim] from calling for help by taking her cell phone. Yet another criminal offense. And we only need one. You have multiple here.

Tr. 329.

{¶30} While the state’s argument touched on an actual theft that could be a basis

for robbery, it also mentioned other acts like punching the victim and keeping her from

talking on her cell phone as being a basis for aggravated burglary, too. If the aggravated

burglary truly was premised on the second incident, no robbery occurred that day. I

believe that what transpired at trial was confusing enough to make the jury’s verdict

questionable.

{¶31} The conviction for disrupting public services is likewise suspect. R.C.

2909.04(A)(1) states that no person shall “interrupt or impair television, radio, telephone,

telegraph, or other mass communications service * * *.” (Emphasis added.) Appellate

courts in this state have held that under this section, “the deciding factor * * * is whether

the defendant’s conduct caused the victim to be unable to use that telephone.” State v.

Hill, 7th Dist. Mahoning No. 09MO3,

. See also State v. Galindo, 5th Dist. Stark No. 2011CA00258,

; State v. Tajblik, 6th Dist. Wood

No. WD-14-064,

.

{¶32} I submit that those cases are arguably wrong. R.C. 2909.04(A)(1) applies

to “damaging or tampering with any property” for the purpose of interrupting or

impairing “mass communications service.” This indicates more than preventing a call

— it requires disruption of a “mass communications service.” Importantly, Herring did

not interrupt an actual telephone call. The victim did not testify that she actually dialed

911, so no communication was interrupted. If R.C. 2909.04(A)(1) is interpreted to

support a conviction in this case, any taking of a cell phone would support a conviction

under R.C. 2909.04(A)(1), whether or not a call has been made. And, taken to its logical

conclusion, an interpretation that taking a cell phone from someone constitutes the

offense of disrupting mass communication services would make it a third-degree felony,

punishable by up to five years in prison, for a parent’s act of taking a cell phone from a

child who refuses to turn the phone off and go to bed as instructed.

{¶33} Although neither Count 2 nor 3 of the indictment charging robbery specified

the nature of the theft offense, during the Crim.R. 29 motion proceedings the state told

the court that both counts were premised on the cell phone, with Count 2 pertaining to the

mother and Count 3 pertaining to the daughter:

In regards [sic] to Count 2 and 3, the robbery counts, your Honor, there was testimony from [the mother] that the defendant, after punching her in her face, took her cell phone that she tried to give to [the daughter]. And [the mother] testified that she gave the cell phone to [the daughter] because she didn’t think the defendant would take it from his eight-year old daughter. And in fact, he did, and she never saw that phone again. That is evidence before this jury to consider.

Tr. 319-320.

{¶34} The mother testified at odds with herself: on direct examination she said that

Herring took the phone from her; but on cross-examination she said that Herring was

“trying to get it from me” and that she gave the phone to “daughter because I didn’t think

he would try to get it from my daughter.” The daughter very clearly testified that she

had the cell phone, but said nothing about whether Herring took it. The mother,

however, testified that Herring took the phone away from the daughter. The sister

testified that the daughter came upstairs, but said nothing about whether or not there was

a phone.

{¶35} It is difficult to understand how Herring took the phone from the mother, yet

the mother was able to give the phone to her daughter so that both sets of fact could

support a robbery conviction. At best, the mother testified that Herring was “trying to

get it from me.” She did not testify that he took the phone and that she was able to get it

back from him before giving it to the daughter.

{¶36} None of this is for naught just because the court merged one of the robbery

counts into the aggravated burglary count. Ordinarily, when the court merges one

offense into another, an appellate court has no obligation to consider whether the merged

count is supported by the sufficiency of the evidence. State v. Ramos, 8th Dist.

Cuyahoga No. 103596,

. However, the state made it clear during

the Crim.R. 29 proceedings that the aggravated burglary in Count 1 consisted of the second incident in which Herring kicked open the door to the house. The state should be

held to that theory, meaning that the court erred by finding Herring guilty of aggravated

burglary with the robbery being the underlying crime. That being the case, the merger of

Counts 1 and 2 should not affect this court’s ability to review the sufficiency of the

evidence with respect to Count 2. Since both robbery counts are still viable, one of them

should be vacated.