STATE OF OHIO, Plаintiff-Appellee, - vs - DRESHON G. BRUMLEY, Defendant-Appellant.
CASE NO. 2016-P-0071
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2017-Ohio-8803
[Cite as State v. Brumley, 2017-Ohio-8803.]
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00457. Judgment: Affirmed.
Shubhra Agarwal, 3732 Fishcreеk Road, #288, Stow, OH 44224 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
O P I N I O N
{¶1} Appellant, Dreshon G. Brumley, appeals from the judgment of the Portage County Court of Common Pleas convicting him, after trial by jury, of kidnapping, felonious assault, and domestic violence. At issue is whether appellant‘s convictions are supрorted by sufficient evidence, the weight of the evidence, and whether his convictions for felonious assault and domestic violence should have been merged. We affirm the trial court‘s judgment.
{¶3} While downstairs, appellant had various questions for Ms. Hamilton and, during the discussion, аppellant became agitated and violent again. He initially punched her in the ribs with a closed fist. Ms. Hamilton stated she was unable to breath after the strike and believed she suffered a broken rib from the blow. Appellant then grabbed her and threw her to the ground, held her shoulders, and slammed her head into the floor several times. After this incident, appellant calmed and the couple retreated to bed. Ms. Hamilton testified she did not call police because she believed the violence was over and did not want appellant to get in trouble with authorities.
{¶4} On Sаturday, June 29, 2016, the couple, with their children, went to the home of Ms. Hamilton‘s mother. Ms. Hamilton advised her mother about her rib injury, but did not disclose the assault. When they returned home, appellant again brought up Mr. Lattrel. The tension escalated and appellant threw Ms. Hamilton to the ground,
{¶5} Over the next several days, Ms. Hamilton sustained a series of repetitive beatings, some of which were severe. Because, however, the indictment charged appellant only with crimes that occurred on Friday, June 28, 2016, it is unnecessary to discuss the nature of the attacks.
{¶6} On Tuesday, July 2, 2016, appellant left the home to umpire another game. While he was out, Mr. Lattrel paid Ms. Hamilton a visit. He indicated he wished to fight appellant. Ms. Hamilton slammed the door and the man left. Upon appellant‘s return home, Ms. Hamilton disclosed the visit. Appellant again became violent, threatening to kill her and repeatedly advising her “lies are worth your life.” Fearing for her life, Ms. Hamilton took an empty pizza box out into the gаrage as though she was going to dispose of the item. She then began to run down the street barefoot. She found help at a local mechanic‘s shop.
{¶7} Police were ultimately called and Ms. Hamilton was taken to the hospital where, after various tests, she learned she suffered a fracture to the left 10th rib and a partially collapsed lung. She also had deep tissue bruising on her forehead and face; multiple scratches on the front, side and back of her neck; significant bruising to her arms; and other superficial injuries to various parts of her body.
{¶8} Appellаnt was indicted on one count of kidnapping, in violation of
{¶9} Appellant assigns four errors for our review. His first two assignments of error provide:
{¶10} “[1.] The trial court committed reversible error when it overruled Mr. Brumley‘s
{¶11} “[2.] Mr. Brumley‘s conviction for [kidnapping] was against the manifest weight of the evidence.”
{¶12} Under these assigned errors, appellant challenges the weight and sufficiency of the evidence supporting his kidnapping conviction. He does not take issue with the evidence in support of his felonious assault or domestic violence convictions. Thus, we need only address the merits of the kidnapping conviction.
{¶13} A “sufficiency” argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury
{¶14} In contrast, a court reviewing the manifest weight observes the entire record, wеighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452 *14-*15 (Dec. 23, 1994).
{¶15} The indictment alleged that, on June 28, 2016, appellant committed kidnapping, in violation of
{¶16} (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
{¶17} * * *
{¶18} (3) To terrorize, or to inflict serious physical harm on the victim or another.
{¶19} Because “terrorize” is not defined by the Revised Code, Ohio courts have defined it according to its common usage, which is “to fill with terror or anxiety.” State v. Eggleston, 11th Dist. Lake No.2008-L-047, 2008-Ohio-6880, ¶30, fn.1
{¶20} The evidence demonstrated that on Friday, June 28, 2016, appellant grabbed Ms. Hamilton out of her bed and dragged her into another room. He threw her onto a different bed, held her down, and began choking and slapping her. As he straddled and struck Ms. Hamilton, appellant released a stream of invective, declaring
{¶21} Notwithstanding the foregoing, appellant argues Ms. Hamilton never attempted to call the police and remained with appellant over the course of additional days without attempting to leave their residenсe. Further, appellant points out Ms. Hamilton never sought help from neighbors or family. Moreover, he emphasizes that each night, after being beaten, choked, and berated, Ms. Hamilton still went to bed with appellant, as though nothing happened. In his view, this conduct calls Ms. Hamilton‘s credibility into question and militates against his kidnapping conviction. We do not agree.
{¶22} Ms. Hamilton explained that she remained in the residence, without calling the police or exposing appellant, because, each night, she believed appellant had finally ceased being upset and she did not wish to get him into trouble. These explanations are reasonable and do not undermine Ms. Hamilton‘s credibility. Accordingly, Ms. Hamilton‘s post-beating conduct does not militate heavily against his conviction for kidnapping. Appellant‘s conviction for kidnapping is therefore consistent with the weight of the evidence.
{¶23} Appellant‘s first and second assignments of error lack merit.
{¶25} “[3.] The trial court committed reversible error and plain error when it sentenced Mr. Brumley for felonious assault and domestic violence as they were allied offenses of similar impоrt subject to merger under
{¶26} “[4.] Mr. Brumley was denied his constitutional right to effective assistance of counsel at trial when his trial counsel failed to argue that felonious assault and domestic violence were allied offenses of similar import subject to merger under
{¶27} Under his third assignment of error, аppellant argues the trial court erred when it failed to merge the felonious assault and domestic violence counts because they are allied offenses of similar import. Whether offenses constitute allied offenses of similar import subject to merger under
{¶28} Under his fourth assignment of error, appellant asserts trial counsel was ineffective for failing to object to the lack of merger. As such, he acknowledges the plain error standard of review applies. Plain error does not oсcur unless, but for some “obvious” error committed by the trial court, the outcome of the trial would have been different. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶31. “Notice of plain error under
{¶30} Felonious assault, pursuant to
{¶31} Finally, to find appellant guilty of either offеnse, it was required to determine he acted knowingly. “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is awarе that such circumstances probably exist.”
{¶33} Later that evening, the couple returned downstairs together where they continued to discuss appellant‘s allegations. Ms. Hamilton testified she made a statement that “set [appellant] off” and he punched her in the ribs. The evidence ultimately revealed that Ms. Hamilton suffered a broken rib and was in excruciating pain as a result of the injury. In fact, she testified that, as a result of the blow, she could not breath, “[i]t took [her] breath away and it hurt to move or do anything after that. [She] believed that [her] rib was broken immediately.”
{¶34} The evidence shows that the first assault after the kidnapping was sufficient to meet the elements of domestic violencе, i.e., appellant knowingly caused physical harm (scratches to her neck from being choked) to Ms. Hamilton, a household member. The second assault, the punch, was sufficient to meet the elements of felonious assault, i.e., appellant knowingly caused Ms. Hamilton to suffer aсute pain of such duration as to result in substantial suffering. Each of these incidents were discrete and separate, causing separate identifiable harm, and accomplished with a separate animus. Thus, the crimes were not allied offenses of similar import and the trial court did nоt err in failing to conduct a merger analysis.
{¶36} Appellant‘s third and fourth assignments of error lack merit.
{¶37} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.