State v. Tolliver
2020 Ohio 3121
Ohio Ct. App.2020Background
- Defendant Gregory Tolliver was initially indicted on felonious assault and domestic violence charges; eight days before trial the state filed a superseding indictment adding two kidnapping counts and other offenses.
- Tolliver waived a jury and proceeded to a bench trial on the reindictment; Counts for violating a protection order and intimidation were later dismissed.
- Victim Tamara Townsend testified to assaults on Sept. 9, 2018, Dec. 27, 2018, and two incidents on Jan. 5, 2019 (an extended assault in an attic and a later assault in a basement), identifying visible injuries and medical treatment.
- Police investigators photographed the scene (blood on washing machine, attic floor), collected the electrical cord and hot plate, and documented Townsend’s hospital injuries and statements identifying Tolliver.
- The trial court convicted Tolliver of two kidnapping counts (Jan. 5), two felonious assaults (Dec. 27 and Jan. 5), and two domestic-violence counts (merged at sentencing); he was sentenced to concurrent terms totaling five years.
- On appeal Tolliver argued (1) vindictive reindictment/ due process violation, (2) convictions were against the manifest weight and insufficient, and (3) allied-offenses merger error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Tolliver) | Held |
|---|---|---|---|
| 1. Superseding indictment/vindictiveness | Reindictment was permissible plea-negotiation practice; discovery had disclosed facts supporting kidnapping and defendant waived objections. | Reindictment adding kidnapping days before trial was vindictive and violated due process. | No vindictiveness or due process violation; defendant waived objection and evidence/support already in discovery. |
| 2. Sufficiency of the evidence | Townsend’s testimony plus photos, medical records, and officers’ testimony, if believed, established kidnapping, felonious assault, and domestic violence. | Victim was unreliable; testimony alone was insufficient to prove restraint for kidnapping. | Evidence sufficient; credibility is for the trier of fact, and viewed favorably to prosecution supports convictions. |
| 3. Manifest weight of the evidence | Trial court reasonably credited Townsend; corroborating physical and medical evidence supported verdicts. | Convictions were against the manifest weight because victim was sole eyewitness and inconsistent. | Not against manifest weight; this is not the exceptional case; trial court did not lose its way. |
| 4. Allied-offenses/merger | Kidnapping involved prolonged, secretive restraint and separate animus from assaults; Count 2 (basement) stood alone. | Kidnapping, felonious assault, and domestic violence arose from same conduct and should have merged. | No merger: Logan factors show separate animus and separate harms; merger not required. |
Key Cases Cited
- Bordenkircher v. Hayes, 434 U.S. 357 (U.S. 1978) (prosecutor may threaten more severe charges during plea bargaining without violating due process)
- Chaffin v. Stynchcombe, 412 U.S. 17 (U.S. 1973) (plea bargaining necessarily involves pressure to forego trial rights)
- State v. Logan, 60 Ohio St.2d 126 (Ohio 1979) (criteria for when kidnapping constitutes separate animus for merger analysis)
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (R.C. 2941.25 allied-offenses framework and burden on defendant)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for manifest-weight review)
- State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (trial court's role in weighing witness credibility)
- State v. Wilson, 47 Ohio App.3d 136 (Ohio Ct. App. 1988) (no presumption of prosecutorial animus for pretrial charge increases)