IN 'i'HE SUPREME COURT OF OHIO ORIGINAL
STATE OF OHIO,
Plaintiff-Appellee,
vs.
CASE NO.
10-20 A
.
On Appeal from the Cnlahoga
County Court of App eals, E;I ghth
Appellate District.
SYLVF:STERSCOTTON
C.A. Case No. 937?9
Defendant-Appellant.
NOTICE OF APPEAL OF APPELLANT SYLVESTER COTTON
D
Sylvester Cotton
NAINE .aND NUMBER
Man.C.Z
[NS-rrnJTloN
NOV 2 9 2010
P.O. Box 788
WDRESS
Mansfield, Oh 44901
C"ITS, S'L-CPE K Z.IP
CLERK OF COURT
SUPREME COURT OF OHIO
PIIONE
DEFENDANT-APPELLANT, PRO SE
Steven Cal.l
PROSECGTORNAME
2200 Ontario Street
.\D[)RESS
Cleveland, Oh 44113
c'l rl-. sTATE & ZIP
PuoNE
COLNSEL FOR APPELLEE, STATE OF OHIO
D
CLERK OF COURT
SUPREME COURT OF OHIO
NOTICE OF APPEAL OF APPELLANT
Appellant Sylvester Cotton
Sylvester Cotton
hereby gives notice of appeal to the Supreme
Court of Ohio from the judgment
of the Cuyahoga County Court of Appeals,
Eighth
Appellate District, entered in Court of Appeals Case No. C1`51503" on
ober 14 , 2010.
This case raises a substantial constitutional question, involves a felony, and is one of
public or great general interest.
SIGNA7'l'RE
Sylvester Co t ton
^11CIE AND NL'nInER
Maal .CI.
INSCfl1ITION
P.C. Box 788
ADDRESS
MAnsfield, Oh 44901
C7TY. STATE & ZIP
DEFENDANT-APPELLANT, PRO SE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Notice of Appeal has been sent by regular
U.S. Mail to
County, Ohio,
1200 Ontario Street
Prosecuting Attorney, Steven Gall
Cuyahoga
on this day of November ,n10
SIGN.aTPRE
Sylvester Cotton 571-416
N.aDIE.aNDNUAIHER
DEFENDANT-APPELLANT, PRO SE
IN THE SUPREME COURT OF OffiO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
COTTON
CASE NO.
On Appeal from the Cty a n oga
County Court ofAppeaLs, Fa.ghtla
Appellate District.
C.A. Case No. ZIN
Defendant-Appellant,
MEMQR^ii'^Dt7M IN SUPPORT OF JURISDICTION
OF AP"PELLANT SYLV ESTER CCrTTf3t+1
SylvesterCotton
NMME^ANp "ER
INST7[7TION
P.O. Box 788
ADDRESS . ^.. . .. . . .. ...
..... Mans ^ i^c
CITY, STATE & ZIP
PHONE..
.. .. . . ..
DEFENDANT-APPELLANT, PRO SE
Steven Gall
PACMrC7^ r7.o Street
ADDCTevelanci, Oh 44113
CITY, STATE & ZIP
PFIONE
COUNSEL FOR APPELLEE, STATE OF OHfO
TABLE OF C©NTENTS
PAGE NOS.
EXPLANATION OF WHY THIS CASE IS A CASE (IF PUBLIC OR GREAT GENERAL
INT.EREST AND INVOLUES A SUBSTANT3AL CONSTITUTIONAL
:...:::.. 1-2
QUESTION............... ........ ................ . ........ ...... ...... .......................... .............. . . ...:...:.
STATEMENT OF THE CASE........ ......... ....... ...... ........................ .. ... . ..... ........... ..... ..... .. . ..:........3
STATEIVTENT OF THE FACTSe ..... ..:........, : .... .,:.....:.....:.......... .. . ....:..... .. .:...... 4
FIRST PROPOSITiON OF LAW :... ........... ..:.... ......:.. .......::... :...,:., ...:::. S
S PPOPOSITIOII OF IAI? . .............................................. S
THIRD PRC3POS3T.IC!I? OF LA[% '
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-13
CONCLUSION........ ........ ......... .. ...,....... .. ...-........: ... :.....:.: ..:.:. :. .......... ......... ............... 14
CERTIFICATE OF SERVICE ..:.::... .....:.:...... ..:. ...:..:: .:...:.:. ........; .......:.,
APPENDIX:
State v. App. No. unreported
FXPANLANT'ION OF WHY THIS CASE IS A CASE OF PUBLIC OR
GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL
CONSTITUTIONAL QUESTION
1. Ihe reason why is because Appellant Sylvester Cotton, was indicted on a number of charges, specifically prior to charges of his conviction. A jury heard [what is
to be considered] evidence of Cotton's FPother acts" pursuant to Evid.R.404(B). After its
presentation to the jury, the trial court dismissed those charges against Cotton pursuant
to his Civ.R.29 motion for acquittal. Because these acts "didn't form a unique, identifiable plan of criminal activity which tends to show by substantial proof, "identity of
the perpetrator" the appellant was prejudiced thereby. See State v. Jamison (1990), 49
Ohio St.3d 182.
Tne question is: Should a trial court allow other acts evidence, without first
considering the degree of prejudice before the commencement of trial?
Only because, even thoug'n'ithe charges was dismissed the jury still heard the evidence, and thats what makes this case of public or great general interest and involves
a substantial constitutional question.
2. The appellant was denied effective assistance of counsel. His trial attorney
failed to request that the counts be severed prior to trial. Qounsel`s performance violated both prongs under Strickland v. Washington 104 S.Ct 2052. (1) the performance of
defense counsel was seriously flawed and deficient and (2) the result of the appellant's
trial or legal proceeding would have been different had defense counsel provided proper
representation. Had counsel objected the joinder and moved the trial court for severance of the joining charges, the prosecution would have at least had the burden of
proving Crim.R.&(A). Instead at the conclusion of the appellant's trial upon his Civ.R.
29 motion for acquittal, the other charges were dismissed due to a lack of evidence. With
the jury already hearing the "other actsevidence°`, if those charges would have been
severed the appellant's outcome definitely would have been different.
'he question is: If the charges are of different dates and are not of the same or
similar character, should a defendant's trial attorney move the court to sever the
charges?
3. Tnis court should accept jurisdiction of the.appellant°s case because his conviction is against the Manifest Weight of the Etridencei'for Aggravated Robbery and Kidnapping. Pursuant-;to R.C. 2923.03(A.)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the
comission of the crime, and that the defendant shared the criminal intentof the principal. The appellant was not identified as an assailant. His two co-defendant's confessed and pled guilty without stating he acted in the robberies with them. And other
witnesses that took proceeds of the robbery stated the appellant only took some of the
proceeds as well, which only makes him gLiilty of Receiving Stolen Property.
The question is: If there isn`t strong zeliable evidence, is a appellant's conviction against the Manefest Weight of the Evidence?
STATEMENT OF THE CASE
A Cuyahoga County Grand.Jury indicted the defendant Sylvester;Cotton, on eight
counts as follows: one count of Theft in violation of R.C. §2913.02A; one count of
Breaking and.Fhtering in violation of R.C.§2911.13A; two counts of Aggravated Robbery
in violation of R.C.§2911.01A(1); two counts of Kidnapping in violation of R.C.S2905.
01A(2); and two counts of Having a Weapon While Under Disability in violation of R.C.
§2923.13A(3). Counts 5 and 6 both included two firearm specifications.
On September 3, 2008, the appellaht entered a plea of not'guilty to all charges
at his arraignment. On June 11, 2009 a jury trial ensued. On June 16, 2009, t:ie trial
court dismissed counts 1,2,3,4 and 5 pursuant to the appellant's P.ule 29 rnotion. Count
8, Having a Weapon While Under a Disability was being tried only to the court. The
trial court found the appellant not guuilty on count 8. Count 5, Aggravated Robbery
and count 6, Kidnapping went to jury for deliberation. On Jutrp, 17, 2009, the jury return
a verdict of guilt on both counts 5 and 6. The jury found the appellant not guiulty on
both firearm specifications in each count.
On July 15, 2009, the appellant entered pleas of guilt in two other tinretated .
cases. The trial court sentenced the appellant on all three cases. The appellant is not
appealing CR 515037 & 514789. The pleas are not relevant to this appeal. The trial court
sentenced the appellant as follows; count 5&6 rnergefor purposes of sentencing, the court
sentenced the appellant to serve a terni of incarceration at a state penal institution
for six years on each count to run concurrently. The sentence was run concurrently to
the sentences in C.R 515037 & 514789. The aggregate sentence was six years.
A timely notice of appeal was filed on August 14, 2009.
STATEIYIENT OF THE FACTS
lhis case arose from a series of attempted and completed robberies of Ace Check
Cashing store located on H.ayden Avenue in Cleveland, Ohio and from a robbery of a Family
Dollar Store. The state indicted the appellant for theft, breaking and entering and
aggravated robberies which occuered on the dates of September 16, 2007 and November 13,
2007. It was argued that the appellant aided and abetted in all of those incidents. It
was argued that the appellant aided and abetted in the January 12, 2008 incident by acting as a lookout during the robbery and taking proceeds from the robbery after it was
completed.
Sergeant Kyle Cunningham of the Fast Cleveland police was assigned to invest0
igate the robbery at Ace Check Cashing. After interviewing LaShawn Jackson, an employee
of the Ace C11eck Cashing store, he determined that she was unable to identify the assailants. Cunningham developed two suspects, Deandre Gordon and the appelant. Cunningham
admitted that the home of the appellant was searched. No weapons were found. No bundles
of cash were found. Cunningham admitted that there was no suspect identified<matching the
height of the appellant who was 6'5'°.
Anita Gibson's daughter Anisha dated Deandre Gorcion, a co-defendant who pled guilty
to this robbery. In January 2008, Ms. Gibson overheard David Sullivan, another co-defendant;and Deandre discussing a robbery of a check cashing store. On another morning
she observed David and Deandre sitting at her table counting money. T11e appellant was
simplysitting in the area. They had stacks,of cash and David was stating that he had done
the robbery himself. David and Deandre divided the money into two piles and then gave some
of the money to the appellant. Ms. Gibson had accepted $100.00 cash from them and was
later indicted for Receiving Stolen Property. Ms. Gibson only heard David and Deandre
speaking about the robbery. David bragged about he did it all of it by himself.
-4-
FIRST PROPOSITION OF LAW
The Court of Appealserred by allowing the prejudicail othere acts
evidence to be introduced to the jury.
The state introduced numerous witnesses who testified about prior
robberies and attempted robberies. The sole purpose of this testimony
was to establish the appellant as a suspectin the previous crimes as
well as the case at bar. The danger that the jury would find that the
appellant acted in conformity with the prior acts to establish his guilt
in the incident at bar in this matter is unacceptable.
The Ohio Suprmem Court has held on numerous occasions that ttie
standard for admissibility of other acts is strict. The court has always that
R.C. §2945.59 must be construed strictly against the state. State v Hector
(1969) 19 Ohio St.2d 167; State v. DeMarco (1987), 31 Ohio St.3d 191.
othere acts Iaw
Before the state may introduce evidence of other acts, it must display
to the court:
1. The act conforms with rule;
2. There exists substantial proof that the act was in fact commited;
3. The act was inextricably related to the offense; and
4. The evidence is admissible under Evidence Rule 403.
In State v. Jamison (1990), 49 Ohio St.3d 182, the Ohio Supreme Court
acknowledged that to be admissible, the other acts need not be the same or
similar to the crime charged. However, to be admissible, these acts mustform
a unique, identifiable plan of criminal activity which tends to show by substantial proof, "identity of the perpetrator." Such a pattern is not present
here.
The use of other acts evidence to show a defendant's propensity toward
criminal conduct is strictly proscribed. State v. Mann (1985), 19 Ohio St.3a
34;1 of the syllabus. The Ohio Supreme Court recently upheld the guidelines of Mann in State v. Williams (1988), 38 Ohio St.3d 346. :
Eivd.R. 404(B) provides only that evidence of crimes, wrongs or other acts
may be admissible. The rule provides no standard for providing when such evidence
may be admitted. Since admission iri this instance involves questions of relevance, Rule 402 to 403 are the controlling provisions.
Because evidence of other acts entails a significant risk of unfair
prejudice, care must be exercised analyzing problems under Evid.R. 404 (B).
Evid.R.401 to Evid.R. 403, read in light of prior Ohio cases, seem to limit admissibilty of other acts to instances where the prosecution can establish that
(1) the evidence is probative of a consequential or material fact; (2) such
consequential or material fact is disputed in the case; (3) the danger of
unfair prejudice is substantially outweighed by the probative value of the evidence.
Defense cojnsel did not object to the evidence nor did he request prior to
trial that the separate theft counts be severed. This failure to act will be
addressed in the Second Proposition of Law.
The lack of Evidence linking the appellant to any of the prior incidents was
blatantly obvious. The state indicted the appellant as a strategy to get the
improper and unfairly prejudicial evidnece before the court and jury. A review
of the testimony demonstrates the lack of evidence against the appellant.
LaShawn Jackson testified about previous break ins at the Ace
Check Cashing store. There was a break in Septeniber of 2007 and another
attempted break in proir to the January 2008 robbecy which is central
to the conviction in the case at bar. Tonya Steger testified that the Septenber 2007 robbery
netted the assailants $12,000 dollars. Another attmpted robbery occured in Novarber of 2007.
Only the enployee's backpack was taken which held the security details manual. She could not
identify a single perpetrator, and stated that there were only two involved.
Sergeant Cunningham testified about a robbery at a Family Dollar store in Cleveland. He
opined that it was similar to the present incident. The suspects of the current case were
developed frao that robbery. The clerk fran Family Dollar recognized Deandre Cordon, a co-defendant, as a possible suspect but was not 100% positive of heridentification. She also identified Deandre Gordon's brother as sareone who appeared similar to the assailant. No facts were
presented as to how the Family Dollar store robbery was in any way similar to that of Ace Check
Cashing.
The state's theory of the case was that Deandre Gordon, David Sullivan and the appellant
carmited all the previous robberies and culminated with the robbery in the case at bar. There
was no particular modus operandi established. Aggravated robberies are generallly conducted by
men tidith masks and guns. The prior acts did not establish any particular pattern or course of
conduct that link them to the case at bar. Family Dollar Store and a Check Cashing Store are in
no way related. In order to be achnissible, these acts rraast forro a unique, identifiable plan
of criminal activity which tends to show by substantial proof, "identity of the perpetrator".
Such a pattern is not present here. There is nothing unique about the robberies that link thern.
Pursuant to Crim.R.29, the trial court dismissed all the counts except for the robbery and
kidnapping which occured in January of 2008, including Having Weapons While Under Disability.
The jury convicted only on the aggravated robbery and kidnapping and found the appellant not
guilty of the firearrn specifications. Clearly a canpranise verdict.
This imporper and unfairly prejudicial evidence was adduced solely to have the jury
find that the appellant acted in confovmity and that he had a propensity for criminal activity.
This testimor:y substitued for substantive evidence. The danger that the jury would accept this
imFroper rationale is so great that a reversal is required. The use of such unfairly prejudicial
material is violative of the Fifth, Sixth, Eighth and Fourteenth Amndrents to the United States
Constitution and the Ohio Constitution.
SECOD PROP05ITION OF IAW
The appellant was denied effective assistance of cansel when caarsel failed to abject
to the irrQr+oper and uifairly prejudicial other acts testimony and for failure to sever the
cants prim^ to trial.
If this Court finds that the appeallant waived the error contained in the First Proposition of Law for failure of counsel to object to the testirrony or to reauest that the
counts be severed prior to trial, then this Court rraast find that the appellant was denied his
right to effective assistance of counsel. The appellant incorporates the first proposition of
law as if fully rewritten herein.
Both the Federal and State Constitutions guarantee a minim;m standard of proficiency of
a criminally accused's counsel. The SIxth dinendrent of the United States Constitution guarantees
that "in all criminal prcsecutions, the accused shall enjoy the right...to take the assistance
of courosel for his defense." In PGwll v. Alabarr§ 287 U.S. 45 (1932), the United States SuprEm
Court first recognized that a defendant has a right not only to the timely appointment of counsel
but also to the quality of perfonnance above a minimal level of effectiveness. Both State and
Federal courts recognized that the failure of trial counsel to properly represent his or her
client might affect the legitimacy of the fact finding progress just as errors by the court or
prosecution might require the reversal of a conviction.
The united States Suprerre Court set forth the miriimtan standard for effective assistance in
Strickland v. Washington(1984), 466 U.S. 68. A two-step test was announced. First, the defendant
must show that ounsel's preformance was deficient. Second, the defendant must show that the
defient performance prejudiced the defense. This latter test requires that counsel's errors vRre
so serious as to deprive the defendant of a fair trial.
In the present case, failure of counsel to object to the testimony of other acts both charged
and uncharged is tantamaunt to ineffective assistance of counsel. Counsel failed to request a
severance of the counts of the incidents relating to Septanber 16, 2007, and Novenber 13, 2007.
Crirrinal Rule 8 allows for the joinder of two or more offenses in the sam indictrwt if the
offenses are "of the same or similar character,... based upon the same act or transaction...
based upon two or more acts or transactions connected together or constituting parts of a ccm
schem or plan, or are part of a course of criminal conduct." Crim.R.8. Fbwever, if it appears
that a defendant is prejudiced by a joinder of offenses, the court shall order separate trials.
Crim.R.14. See also, State v. Schaim, 65 ohio St.3d 51, 600 N.E.2d 661 (1992).
There was no evidence linking the appellant to either of those cases and the testimony was
unfairly prejudiial. The state planned to use those incidents to show that the appellant was
involved in other bad acts so he must have been involved in the current robbery as well. Clearly
there vdas no evidence to support the theory that the appellant had any involverrent in those
earlier cases as, in fact those counts were dismissed pursuant to Rule 29 for lack of evidence.
Counsel should have requested that the counts be severed prior to trial. There was no
physical description matching the appellant, no scientific of forensic evidence. and no witness
identification evidence. TIie appellant was prejudiced by the joinder.
Minimally counsel should have objected to the testimony at trial, filing a motion in
Limine to have the other acts testimcny barred. The testimony regarding the robbery at the
Family [bllar store had no relevant basis in the present case and should have been excluded.
There is no reasonable trial strategy imaginable that could justify having a jury hear that
evidence and consider it when reaching a verdict.
The test for prejudice, the second step, is whether there is a "reasonable probability"
that the outcaa` of the trial wuld have been different absent the error. Id. At 696. A
"reasonable probability" of a different outcanes means that defense'counsels' error, or deficient
perfonnance, undermines the confidence in the adversarial nature of the trial. Strickland v.
Washington, Id. at 694.
The canpranised verdict by the jury along with the trial court's dismissal of the counts
involving the unfairly prejudicial testimcny is clear evidence that there is more than a reasonable probabilty that the outcam of this trial wUuld have been different absent counsel's errors.
The error were violative of the appellant's Sixth and Fourteenth Amendnent rights under the
United States Constitution and the Ohio Constitution.
THIRD PROP05ITION OF fAW
The weight bf the evidence does not support a verdict of guilt for Aggravated Robbery
and Kidnappirg-
in the present case, the jury clearly canpranised its verdict. The state's theory was that
the appeallant aided and abetted in the aggravated robbery and kidnapping with gun specifications.
The jury found the appellant guilty on the tw primary counts but not guilty on the gun specifications. The evidnece at best established that the appellant was guilty of receiving stolen
property when he accepted sane of the stolen mmnies.
Jury verdicts are assailable. Although a sufficient legal basis may arguably exist to
sustain a conviction, the evidence forming that basis must be credible. If the verdict based on
evidence so incredulous or inconaruous that no reasonable jury could rest the verdict upon its
legitimacy beyond a reasonble doubt, a reviewing court must reverse the conviction and order a
new trial.
The juries's finding of guilt is against the weight of the evidence. The jury relied upon
the testimany of corrpletely unreliable witnesses. The ferneles who were allegedly present at the
time the money was divided after the robbery, Even based upon that testimony, at best the appellant is guilty, as they were, of receiving stolen property. There is simply no other evidence.
Objectively, the evidence established that thee appellant accepted sare funds fran the proceeds of the robbery. FLe may have been present in the rocm, but not an active participant in the
discussion concerning the robbery. There was absolutely no evidence that Fee participated in the
robbery in any way.
Section 3(B)(3), Art. IV of the Ohio Constitution authorizes appellant courts to assess
the weight of the evidence independtly of the fact-finder. This authority gives the courts of
appeals t^ee "power to decide that such verdict is against the weight of the evidence. "State v.
Robinson(1955), 162 Ohio St. 486, 487.
The appellate court's pmre to weigh the evidence is not discretionary. The Ohio Suprere
Court has held that a court of appeals "has the authority and the duty to weigh the evidence
and to detennine whether the findings of... the trier of fact were so against the wRight of the
evidence as to require a reversal and a rerranding of the case for retrial." State,ex rel.Squire
v. City of Cleveland (1948), 150 Ohio St. 303, 345. When an appellant properly raises the question
of the weight of evidence, an appellant court must make its own weighing of the evidence.
A reviewing court can review that which is nornpally entrusted to the fact-finder: to
determine the believability of the evidence in the record and to rmke a judgurent as to where
the "weight" of the testimony lies. In making this decision, the court is required to utilize
the normal tests for considering the believability of testimony: 1) certainty of the evidence;
2) reliabilty of the evidence; 3)interests of the witnesses; 4)whether the witnesesses were
impeached; 5)whether the evidence was uncontradicted; 6)consideration of what was not proved;
and 7)which evidence was vague, uncertain, conflicting, fragn.^rrted, or not fitting together in
a logical order. State v. Mattison(1985), 23 Ohio App. #d 10.
In other wards, the reviewing court sits as the "thirteenth juror." If it disagrees with
the jury's resolution of the conflicting testirrony, a new trial is in order. Nbreover, by
definition, such reversal can only occur after the state has presented sufficient evidence and
eY''Dt`f➢`< a ,"'.fttn'VI',N
, (19821,
,.i.,:^t': y a 1_2'T7 e:-7 of
[+.,^'i 1
U0, 3
.
the
. evidence qWS`,r,iti'..7:.^^I.:'^^^.
Wt1 . the t",#.l..at}s:^.L^^ilf'C
,.
was I3f.st an aider K7:1d abettor to the a?g'a'J'
aaripii;r> a
clear!
>a>
- robbery,
jac '.aC1Lni
i,.'e'1.C'. victim i of iwi:3Y^
^fQiaUi^'.j:.e`:3
single i*ic??Jf°tl"a.?'4k"..
HAGvE?VL1y
coul d ""; not 1d^ :`3'^".7.„' y }7: -1„
;.3LI-2e'4;a"w`" a„'li.'` to state f.':te:.t there 74'i'<. 4}al:y two
4:)llir7.i:.e(d, t1:1e i:.?_'3.fie i^.fE'.`.l.U^1fi''.: t}i V"1a t'8do were e$til4:T.Sicl'J,e',.'.
^*'z
60°i. One of the assailants YwT8s a lookout in 'Ch:'.. D"c1:Ck71n}?
''?riJe!..Ye.,m.lY:''v
r;i
ot ,, i f o the
GrYW a,wtuLl robbery and ?;i ;u a
'1'n'a state relied t,p ., the
ends/friends of the c..c defanc:ar:cs
'fdC1 v.'.w°abl14h the cPPPi^.::ll WS guilt. Despite ihe fae%1:. that the 5,;3_tresaC:., TJe7_°c? ;.C! &3ew
Cf'1twPi3* or friends with the CC3°-d'-t:.'£e'i"1d'u'il"itds who pf.d guilty in the va,^`su, they all U'f'Y):.u:i.8^.
+1
ti.'C41"lj oi'`eia.u...i ,̀.;la't tt1;.. A.Y.^(J^"'^.^.'.'Ctr
.^i."YaC"E i.rfJE.i1:4.i'f^? to LT%^ `r.J0.n the Tt3L[''v?:'^ °e]:Y^`SCJ. further 3.Ii'I},3t.7.^.
+'9.,gT7:1.i3.c£aT1t- Ch"',ieLs.
!hG'vf consistently sUatt,'.d r..^7,ai, `3' we1..^•. Fa.1.I,Gl'in<<*., in `i'„i'4° p'Coiil
1:`1i541 i.h.°., apla^,fln tJa.s d3..iCx1Ssc?d. by':^,"+,'gi(: a0^"CZeY`.'<atYdaZlfn'.as a1n(?. Ya'inC',"in r1^"4f? CC9G2ne"J
d after
'otit v^.^Ys ncYt an active }:?arti.:ipant.
.
I'L2wu^"•V-C^;G'
S TRoT1C' of the t'-t ati litC5YYy `P;i Lt`1Y"kli <,>`ht;?Ck any a'i.tn..OL9 which ^
.,.09,.v'I `j. be C
as a
t the tust:imrsY~Yy e:s'ra'i,^1i.hnd that the aDoa17.a;.,fi aloY A
VYSe t:iU'6TI ar'+:epfiQ.,.'C:;I. money f?"CYiil ui'Y2 p3:!C1cew.Ci;;"+ of the !:'C}!"3b-Ciy.,
In January ?ti089 Ms. gibson cav2v'
:a. Cl1 O::Y
tiale counting i^i©Y3n}j.
A n,.aU3.d. c^zYAd. Deandre dnscL?E'E.Ei1ng a robbery of a
7.Ci r,^^:i"lCS. i14?t"4,"L'Ii1"e sitZ.ln,?.'^ at
s]I.1.7.T'S? in the aYcule They
^!f
Ce,7i'3js and d'Je1'V2.d was stating that 4.7£..' E^f.aG'. ClU17£ ti"9{,' i'Gf3ibF'_iJ ''.'Y3.11"c'si'_aL. David c"Ii;G`.
e3..Vi.t'A.eCi. th'=' Ylota;:y into two piles and then they gave no[142 of i;.6'1-..-'? Ci1JCSw}7 to the eLPpti'liaYlta
M£i Gibson P7aGi', a':"..c^i.,,t'?d $1(}0.00 cash fY°r,.Tl."ii %,V'.'9'E^".^11 and was later iL'd1+stCCi for Receiving
Stolen Pzope: 4y.
'1.5iar^ J itryloUt ir,., ra^aY
uv cuz3:it
iana
d.encU so ua^^eliablf= a
c«as;: r.°ca..irancIe
$rai:?le fact
appellant xi?r",,.s''d upon ':e'?.'v' ruV'l,delYat
1 not have cc;nvia:,teci cara rva.
nt'vcon•v ict? ons sz.caUr.° b-w vacated a-ad
v
° va.1, tir
CONCLUSION
This case raises a substantial constitutional question, involves a felony and is one of
public or great general interest. Review shouid be geanted in this case.
S-{^ ^-^,^
SICZNAT[)RE
Sulur,,^LL
NAINC
(!., ^E .
INS'
^^, IA -iln
ADDRESS. . . . . . .
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CITY, STATE BiZIP
CERTIFICATE OF SERVICE
I hereby eertify that a copy of the foregoing Memorandum in Support of 7urisdiction of
Appellant Cj:& nA ) has been served by U.S. mail postage pre-paid to
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Prosecnting Attorney ^7l
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this day of YWF_MbE _ 2010
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NAME AND NUMEEIt
DEFENDANT-APPELLANT, PRO SE
Court of 3ppeaW of ®bio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93779
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SYLVESTER COTTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal irom the
Cuyahoga County Court of Common Pleas
Case No. CR-515038-A
BEFORE: Jones, J., Rocco, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 14, 2010
-i-
ATTORNEY FOR APPELLANT
Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Steven E. Gall
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
F1LED AND JflURNP\LlZU)
DFCe aPP.R. ^^^^A
OCT 14 2010
GERALD E. fUERST
CLERK OF THE COUiRT OF APP'Ep ^
DY
-1-
LARRY A. JONES, J.:
Defendant-appellant, Sylvester Cotton ("Cotton"), appeals his conviction
for aggravated robbery and kidnapping. Finding no merit to the appeal, we
affirm.
In 2008, Cotton was charged in. Cuyahoga County Juvenile Court with
theft, breaking and entering, having a weapon while under a disabiLty, and two
counts each of aggravated robbery and kidnapping. Firearm specifications
accompanied the aggravated robbery and kidnapping charges. Cotton was
charged as a juvenile, but he was bound over to stand trial as an adult. He was
indicted on the above charges and an additional having a weapon while under
a disability charge. The matter proceeded to a trial by jury. After the close of
the state's evidence, the trial court dismissed the theft and breaking and
entering charges and further dismissed one count of aggravated robberv and one
count of kidnapping.
The following pertinent facts were adduced at trial.l.
On January 12, 2008, Lashawn Jackson ("Jackson") arrived at the Ace
America's Cash Express ("Ace") store in East Cleveland. As the store's manager,
Jackson was responsiblefor opening up the store for the day's business. Jackson
'The charges involved three events: breaking and entering into Ace on
September 16, 2007, a robbery on November 13, 2007 at Ace, and the January 12, 2008
robbery at Ace. The trial court dismissed all charges stemming from the first two
events; therefore, the facts of the case will center on the January 2008 robbery.
-2drove around the block to make sure everything appeared safe and then pulled
up to the store. As she got to the door, two masked youths approached her from
either side, holding shotguns. The youths ordered her to open the store and
threatened to kill her if she refused. After she entered the store, one of the
assailants followed her while the other stayed outside. Jackson proceeded to
open the safe, which had a ten minute time release lock on it. During the ten
minutes, the armed assailant continued to threaten Jackson. Once the safe was
opened, the assailant had Jackson fill a box with the contents of the safe, which
was just under $30,000. Jackson then ran from the store. She saw her aunt pull
up in a car and Jackson ran to the car. The aunt testified that she was the
district manager of Ace and had received a call that the store had not opened on
time. The aunt drove to Ace and saw her niece running from the store.
The night before the robbery occurred, Cotton was sitting with his friends,
David Sullivan ("Sullivan") and Deandre Gordon ("Gordon"), in Anita Gibson's
("Gibson") house. Gordon dated Gibson's daughter. Sullivan and Gordon were
discussing breaking into Ace through the roof of the store. Sullivan, Cotton, and
Gordon left to go survey the store. Cotton returned and spent the night at
Gibson's house. The next morning Sullivan and Gordon picked Cotton up and
all three returned a short time later with a box of bundled money. Sullivan and
-3Gordon divided the money and gave some to Cotton and some to Gibson.2 Cotton
then took Gibson to the auto repair shop to pay for repairs to his car and
Gibson's car. Cotton paid for the repairs in cash.
The jury convicted Cotton of aggravated robbery and kidnapping, but
acquitted him of the firearm specifications. The trial court acquitted Cotton of
the having a weapon while under a disability charges and sentenced him to six
years in prison,3
Cotton now appeals his conviction, raising the following three assignments
of error for our review:
"I. The trial court erred by allowing prejudicial other acts evidence to be
introduced to the jury.
"II. When counsel fails to request severance of counts and/or object to such other
acts evidence where it will unfairly prejudice the defendant, it is
ineffective assistance of counsel.
"III. The jury erroneously found the defendant guilty of aggravated robbery and
kidnapping where there was no physical or scientific evidence linking
defendant to the crimes and where the witnesses were unable to identify
the assailants."
Other Acts Evidence
First, Cotton claims that the trial court erred in allowing other acts
evidence to be introduced to the jury. We disagree.
ZGibson accepted $100 of the robbery proceeds and was later indicted for
receiving stolen property.
3Gordon and Sullivan both pled guilty to charges stemming from the January
2008 robbery.
-4Evid.R. 404(B) provides that "[e]vidence 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."
Cotton argues that the state impermissibly introduced evidence of the
September and November 2007 incidents to help prove he was guilty of the
January 2008 robbery.
We find that the state did not introduce evidence of Cotton's other acts
pursuant to Evid.R. 404(B). The state presented evidence of Cotton's
involvement in the other offenses because he was charged with those other
crimes in the same indictment. It was the state's duty to attempt to prove each
element of the crimes it had indicted Cotton with. The state failed, and the trial
court dismissed those charges against Cotton pursuant to his Civ.R. 29 motion
for acquittal.
We find no error in the trial court's admission of the evidence relating to
the September and November 2007 crimes. The first assignment of error is
overruled.
Severance
In the second assignment of error, Cotton argues that his counsel was
-5ineffective for failing to request that the charges be severed or for failing to
object to other acts evidence.
In order to substantiate a claim of ineffective assistance of counsel, the
appellant is required to demonstrate that (1) the performance of defense counsel
was seriously flawed and deficient and (2) the result of the appellant's trial or
legal proceeding would have been different had defense counsel provided proper
representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N:E:2d 407.
Judicial scrutiny of defense counsel's performancemust be highly deferential.
Strickland. In Ohio, there is a presumption that a properly licensed attorney is
competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio- 102, 714 N.E.2d 905.
Cotton first claims that counsel was ineffective for not requesting that the
arLyes relating to each crime be severed.]Crim.R. 8 allows for the joinder of two
or more offenses when the offenses "are of the same or similar character, or are
based on the same act or transaction, or are based on two or more actsor
ransactions connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conducti Generally, the law favors
joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses
charged are of the same or similar character. State v. Lott (1990), 51 Ohio St.3d
160, 163, 555 N.E.2d 293. Joinder and the avoidance of multiple trials isfavored
for many reasons, among which are conserving time and expense, diminishing
-6the inconvenience to witnesses, and minimizing the possibility of incongruous
results in successive trials before different juries. State v. Torres (1981), 66 Ohio
St.2d 340, 421 N.E.2d 1288.
An accused may move to sever the charges under Crim.R. 14, but he has
the burden to affirmatively demonstrate that his rights will be prejudiced by the
joinder. Lott. A showing by the state that the evidence relating to each crime
is simple and direct negates any claims of prejudice and renders joinder proper.
Lott, supra; State v. Roberts (1980), 62 Ohio St.2d 170, 405 N.E.2d 247; State v.
Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288. It is the defendant who bears
the burden of demonstrating prejudice and that the trial court abused its
discretion in denying severance.
State v. Hill, Cuyahoga App. No. 80582,
2002-Ohio-4585, citing State v. Coley, 93 Ohio St.3d 253, 2001-Ohio-1340, 754
N.E.2d 1129.
In this case, Cotton has failed to demonstrate that his rights were
prejudiced by the joinder. Further, he has not shown that there was a
reasonable possibility that the trial court would have granted a motion to sever
had his attorney filed one. The record reflects that the evidence relating to each
crime, as presented by the state, was simple and direct, and would not confuse
the jury or cause the jury to improperly cumulate the evidence of the various
crimes. See Torres; Lott.
Moreover, the trial court dismissed the charges
-7relating to the first two offenses and instructed the jury that they were only to
proceed on the January 2008 robbery.
Cotton further argues that his counsel was ineffective for failing to object
to the state's introduction of other acts evidence. But as we discussed under the
first assignment of error, the state introduced evidence of the other crimes
because they were charged in the in.dictment.
Thus, Cotton did not receive ineffective assistance of counsel.
The second assignment of error is overruled.
Manifest Weiaht of the Evidence
In the third assignment of error, Cotton argues that his convictions for
aggravated robbery and kidnapping were against the manifest weight of the
evidence.
In reviewing a claim challenging the manifest weight ofthe evidence, we
look at whether "there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable
doubt. In conducting this review, we must examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses,
and determine whether the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
-8ordered:' (Internal citations and quotations omitted.)
State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.
Cotton maintains that the evidence the state presented at trial supports,
-at best,-a conviction for-receiving stolEnproperty-andt-hat there-vvas-nD evidence
that he aided and abetted Sullivan and Gordon with the robbery and
kidnapping.
"To support a conviction for complicity by aiding and abetting pursuant
to R.C. 2923.03(A)(2), the evidence must show that the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of
the principal. Such intent may be inferred from the circumstances surrounding
the crime." State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d
796, syllabus. "Participation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed." Id. at
245, quoting State v. Pruett (1971), 28 Ohio App.2d 29, 34, 273 N.E.2d 884.
Aiding and abetting may be established by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and
conduct before and after the offense is committed. State v. Cartellone (1981), 3
Ohio App.3d 145, 150, 444 N.E.2d 68, citing Pruett at 34. The mere presence of
an accused at the scene of a crime, however, is not sufficient to prove, in and af
-9itself, that the accused was an aider and abettor. Johnson at 243, quoting State
v. Widner (1982), 69 Ohio St.2d 267, 269, 431 N.E.2d 1025.
A review of the trial record shows that the state presented evidence that
Cotton was morethan an innocent bystander. Although Cotton argues that
there was no physical or scientific evidence to connect himto the robbery, proof
of guilt may be made by circumstantial evidence, real evidence, and direct
evidence, orany combination of the three, and all three have equal probative
value. State v. Hines, CuyahogaApp. No. 90871, 2009-Ohio-2118, citing State
v. Nicely(1988); 39 Ohio St.3d 147, 529 N.E.2d 1236. Gibson and her niece each
testified that Cotton was with Sullivanand Gordon the night before the robbery
and Sullivan and Gordon discussed how tocomplete the robbery. Gibson's niece
also testified that Cottonspent the night and that Sullivan and Gordon arrived
early the next morning at the house to get him. The three youths returned an
hour and a half later with one youthcarrying a box of money. The niece testified
she saw Cotton carry the box of money around inside the house: Sullivan and
Gordon split up the moneyintothree piles with Cotton sitting off to one side on
a barstool. Cotton then took one pile of money and took Gibson to the auto
repair shop to fix their respective cars.
Gordon's girlfriend, who had previously stated to police that Cotton drove
the "getaway" car, testified that she had lied to the police about that fact so that
-10she herself would not be charged with any crimes. She admitted, however, that
she had put in her written statement to police that Cotton stayed in the car and
waited at the corner for Gordon and Sullivan. Her testimony that she only told
police what her mother had told them was rebutted by the detective's testimony
that he had not shared information with the daughter about what her mother
had told him about the crimes and surrounding events.
The jury was in the best position to determine the credibility of the
witnesses, and we will not usurp its important role in this case. We do not find
that this is the case in which the jury lost its way in convicting the defendant.
Therefore, the third assignment of error is overruled.
Accordingly, judgment is affirmed.
It is ordered that appellee recover of 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.
-11A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
a
LARR A. J ES, J GE
KENNETH A. ROCCO, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR