Youngstown Daily Legal News

Court upholds sentence for man who arranged illegal sale of guns, robbery

ANNIE YAMSON
Special to the Legal News
Published: February 17, 2015

A man who arranged illegal gun sales in Cincinnati was left with his prison sentence unchanged last week after a panel of judges in the 1st District Court of Appeals considered his appeal.

The defendant, Kevin Bates, was convicted in the Hamilton County Court of Common Pleas on charges of aggravated robbery, having a weapon under disability, improperly handling a firearm in a motor vehicle and carrying a concealed weapon.

In his appeal, Bates challenged the sufficiency and weight of the evidence, the trial court’s decision not to merge his offenses and several evidentiary decisions made by the trial court.

The reviewing panel concluded that one of the convictions — carrying a concealed weapon — was not supported by the evidence because there was no proof that the weapon was ever concealed.

That conviction was vacated but it made little difference in his prison time because the trial court had ordered that sentence to run concurrently with the prison terms imposed for the other counts. Therefore, Bates’ aggregate sentence remained unchanged.

Case summary states that Bates was known in Cincinnati as “the gun guy” for his illegal sales of firearms.

Cincinnati police set up a sting operation using confidential informant Timothy Johnson, who was supposed to buy guns from Bates while wearing a recording device and using money that had been photocopied by the police.

The intended sale, however, went awry when Bates deviated from the plan.

Instead of conducting the sale at the prearranged meeting spot, Bates drove Johnson to a side street and then left the car, saying he had to go get the guns.

While Johnson was waiting in the car, two armed men approached him and robbed him. A hidden video recorder captured the incident.

The men threatened to shoot Johnson and took the money and a police-provided cell phone. They also discovered the video recorder and ripped it from Johnson’s body.

The court’s summary of the events states that Bates returned to the car about 15 minutes later, notably, without any guns.

Bates then drove Johnson back to where they met and said he would find out who committed the robbery.

The police subsequently tailed Bates’ car. At trial, Officer Joshua Fehrman testified that he saw Bates pull over to allow two men to get into the vehicle.

Eventually, Bates was pulled over. As they approached, officers noticed that Bates was holding a gun which was later recovered on the floor of the vehicle under the steering wheel. The police also recovered the photocopied money in the car.

Bates’ passengers, Harold Chandler and Tywon Reliford, were identified by Johnson as the men who had robbed him.

Both Chandler and Reliford testified that Bates had orchestrated the robbery and provided them with weapons.

Bates, on the other hand, admitted that he had arranged a gun sale with Johnson that never took place, but he denied having any involvement in the robbery.

At the end of the trial and following the jury’s guilty verdicts, Bates was sentenced to 16 years in prison.

On appeal, Bates first argued that the trial court made several errors when it came to evidence admitted at trial.

For instance, he claimed that his prior felony record and the assistant prosecuting attorney’s comments during opening statements should not have been admissible. The appellate panel disagreed.

“We conclude that Mr. Bates has not demonstrated that the outcome of the trial would clearly have been different but for the trial court’s allegedly improper actions,” wrote Judge Patrick DeWine for the court of appeals.

The reviewing court went on to consider Bates’ sufficiency and manifest weight of the evidence claims, overruling all but one of Bates’ arguments.

“The conviction for carrying a concealed weapon is a different matter,” wrote DeWine. “Here, the state presented no evidence that the gun was concealed.”

The officers who arrested Bates testified at trial that they saw Bates holding the gun as they approached his car and then later found it on the floor of the vehicle.

“Missing from the testimony was any indication about whether the gun, as it lay on the floor of the car, was so situated as not to be discernible by ordinary observation,” DeWine wrote. “Absent this evidence, the state did not present sufficient evidence of the concealment element.”

That conviction was reversed before the court of appeals moved on to Bates’ last assignment of error in which he contended that his offenses should have merged for sentencing.

“The evidence submitted at trial demonstrates that the offenses were separately committed,” DeWine wrote.

DeWine noted that the robbers testified Bates had provided them with weapons to rob Johnson, leading to the conclusion that Bates was a felon in possession of a firearm before the robbery took place.

The subsequent robbery was a separate act and the improper handling of a firearm in a motor vehicle took place after the robbery when the police had already pulled Bates over.

Considering the evidence and the course of the events leading to Bates’ arrest, DeWine concluded that “the trial court did not err when it did not merge the convictions for sentencing.”

The judgment of the Hamilton County court was affirmed with Presiding Judge Patrick Fischer and Judge Penelope Cunningham joining DeWine to from the majority.

The case is cited State v. Bates, 2015-Ohio-116.

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