STATE OF OHIO v. RAYMOND BUSHNER
C.A. No. 26532
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 19, 2012
[Cite as State v. Bushner, 2012-Ohio-5996.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 12 3301
CARR, Judge.
{1} Defendant-Appellant, Raymond Bushner, now appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{2} Bushner and seven other people were involved in an affray that took place at the apartment of Cory Prettyman. Bushner had been staying at the apartment for a brief period of time at Prettyman‘s invitation. On October 30, 2011, Bushner and Prettyman fought and several other individuals, one of whom brought a gun, were notified of the fight and came to the apartment. The witness accounts of what then happened varied, but the end result was that Bushner shot one of the unarmed individuals who came to the apartment and then fled.
{3} A grand jury indicted Bushner on counts of felonious assault, domestic violence, having weapons while under disability, tampering with evidence, and intimidation of a crime victim or witness. The felonious assault, having weapons while under disability, and tampering
{4} Bushner now appeals from his convictions and raises seven assignments of error for our review. For ease of analysis, we consolidate several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT DENIED BUSHNER‘S MOTION TO DISMISS THE COUNT OF HAVING WEAPONS WHILE UNDER DISABILITY CHARGE.
{5} In his first assignment of error, Bushner argues that the trial court erred by not dismissing his weapons under disability charge. Based upon our review of the record, we must remand the matter for further proceedings.
{6} Relevant to this appeal, the weapons under disability statute provides that “no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person * * * has been convicted of any felony offense of violence * * *”
[I]n order to determine whether an out-of-state conviction is substantially equivalent to a listed Ohio offense, a court must initially look only to the fact of conviction and the elements of the relevant criminal statutes, without considering the particular facts disclosed by the record of conviction. If the out-of-state statute defines the offense in such a way that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the factfinder was required to find all the elements essential to a conviction under the listed Ohio statute. To do so, courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record.
State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, ¶ 31. The State bears the burden of proving that an out-of-state offense is the substantial equivalent of the Ohio offense upon which it seeks to rely. Id. at ¶ 46.
{7} In seeking to prove that Bushner had been convicted of a felony offense of violence, the State relied upon a 2006 conviction for false imprisonment that Bushner received in Florida. The subdivision of the false imprisonment statute under which Bushner was convicted reads as follows:
(a) The term “false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.
(b) Confinement of a child under the age of 13 is against her or his will within the meaning of this section if such confinement is without the consent of her or his parent or legal guardian.
(A) No person, without privilege to do so, shall knowingly do any of the following:
(1) By force or threat, remove another from the place where the other person is found;
(2) By force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear;
(3) Hold another in a condition of involuntary servitude.
{8} Bushner argued in the court below that his false imprisonment conviction was substantially equivalent to the Ohio offense of unlawful restraint. The trial court rejected Bushner‘s argument on the basis that abduction in Ohio is substantially similar to false imprisonment in Florida. The court never discussed why unlawful restraint was not substantially equivalent to false imprisonment in Florida. In reliance upon the trial court‘s pre-trial ruling, the only piece of evidence that the State introduced at trial to prove Bushner‘s disability was a copy of his judgment entry from his conviction in Florida.
{9} Ohio‘s unlawful restraint statute provides that “[n]o person, without privilege to do so, shall knowingly restrain another of the other person‘s liberty.”
{10} Because the Florida false imprisonment statute is phrased in the alternative, the trial court was correct that the Ohio abduction statute, on its face, is also substantially equivalent to Florida‘s false imprisonment statute. That is because the false imprisonment statute includes unlawfully and forcibly abducting another against his or her will.
{11} Bushner‘s weapons under disability conviction required the State to prove that, at the time he had a weapon, Bushner was under disability for a Florida offense that was substantially equivalent to an offense of violence in Ohio.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY REFUSING TO GIVE PROPER SELF-DEFENSE JURY INSTRUCTIONS UNDER THE CASTLE DOCTRINE, R.C. 2901.09.
{12} In his second assignment of error, Bushner argues that the trial court erred in its self-defense instructions to the jury. Specifically, he argues that the trial court did not properly instruct the jury on the duty to retreat. We disagree.
{13} Bushner acknowledges that he did not object to the court‘s jury instructions and that a plain error standard applies. Generally, a defendant‘s failure to object to an allegedly erroneous jury instruction limits any review of the alleged error to a review for plain error. State v. Johnson, 9th Dist. No. 25525, 2011-Ohio-3941, ¶ 20. Under
{14} To establish self-defense in circumstances involving the application of deadly force, a defendant must prove that he: “(1) * * * was not at fault in creating the situation giving rise to the affray; (2) * * * ha[d] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) * * * [did] not [] violate[] any duty to retreat or avoid the danger.” State v. Westfall, 9th Dist. No. 10CA009825, 2011-Ohio-5011, ¶ 19, quoting State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 4. Yet, a person has no duty to retreat from his own home. Tucker at ¶ 4. Accord
{15} In certain instances, a presumption of self-defense may arise. A defendant is entitled to such a presumption if he used deadly force against a person who was “in the process of unlawfully and without privilege to do so entering, or ha[d] unlawfully and without privilege to do so entered, the residence * * * occupied by the [defendant].”
{16} “The difference between the [c]astle [d]octrine and the rebuttable presumption of self-defense lies in the legal status of the victim.” State v. Lewis, 8th Dist. No. 97211, 2012-Ohio-3684, ¶ 18. If the victim had a right to be in a residence at the time the defendant used
{17} The trial court instructed the jury on the presumption of self-defense, the duty to retreat, and the elements of self-defense. With regard to the presumption of self-defense, the court instructed that Bushner was not entitled to such a presumption if (1) the victim was lawfully present in the residence when Bushner shot him, or (2) if Bushner was not lawfully present in the residence. See
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING BUSHNER TO CONSECUTIVE SENTENCES IN VIOLATION OF R.C. 2929.41(A).
ASSIGNMENT OF ERROR IV
BUSHNER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF CONSECUTIVE SENTENCES WAS CONTRARY TO LAW.
{18} In his third assignment of error, Bushner argues that the trial court erred by imposing consecutive sentences on him. In his fourth assignment of error, he argues that his trial counsel was ineffective for not objecting to the court‘s imposition of consecutive sentences. We disagree with both propositions.
{19} Trial courts have “full discretion * * * to sentence defendants within the bounds prescribed by statute.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, ¶ 32, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraphs one through seven of the syllabus. Appellate courts apply a two-step approach in reviewing the sentence that a trial court has imposed upon a defendant. Evans at ¶ 32, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.” Kalish at ¶ 4. Because Bushner only argues that the trial court failed to comply with a statute in sentencing him, we need only consider whether his sentence is clearly and convincingly contrary to law.
{21} In response to Hodge, the General Assembly enacted 2011 Am.Sub.H.B. 86, 2011 Ohio Laws File 29, thereby revising several of the statutes addressed in Foster and Hodge. In particular, the General Assembly struck, and then reinserted the language from
{22} Former
Except as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term * * * shall be served concurrently with any other prison term * * * imposed by a court of this state * * *
{23} Bushner argues that the court erred by imposing consecutive prison terms upon him because none of the exceptions set forth at the beginning of former
{24} This Court will not reverse Bushner‘s consecutive sentences on the basis of a typographical error when the legislature‘s intent in enacting 2011 Am.Sub.H.B. 86 was clear. See State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 81, fn.2 (
{25}
{26} Bushner also argues that he received ineffective assistance of counsel because his counsel did not object when the trial court imposed consecutive sentences without complying with
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING BUSHNER TO MULTIPLE FIREARM SPECIFICATIONS UNDER R.C. 2941.145, AS THEY WERE PART OF THE SAME ACT OR TRANSACTION.
BUSHNER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF MULTIPLE FIREARM SPECIFICATIONS UNDER R.C. 2941.145 WERE PART OF THE SAME ACT OR TRANSACTION.
{27} In his fifth assignment of error, Bushner argues that the trial court erred by sentencing him on multiple firearm specifications when the specifications arose as part of the same act or transaction. In his sixth assignment of error, he argues that his trial counsel was ineffective for not objecting to the court‘s imposition of multiple sentences on the firearm specifications. We disagree with both propositions.
{28} Because Bushner argues that the court made a legal error in imposing his sentence, we incorporate the standard of review set forth in his third assignment of error. As such, we review his sentence to determine whether it is clearly and convincingly contrary to law. Evans, 2010-Ohio-3545, at ¶ 32, quoting Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶ 4.
{29} A court must impose a three-year prison term upon an offender who is convicted of a felony and an attendant firearm specification under
{30}
Except as provided in division (B)(1)(g) of this section, a court shall not impose more than one prison term on an offender under division (B)(1)(a) of this section for felonies committed as part of the same act or transaction.
(Emphasis added.)
If an offender is convicted of * * * two or more felonies, if one or more of those felonies [is] * * * felonious assault * * *, and if the offender is convicted of * * * a specification [under R.C. 2941.145] in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted * * * and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
(Emphasis added.) Accordingly, a trial court must impose at least two prison terms for firearm specifications if the conditions set forth in
{31} Bushner was convicted of four felonies and one of those felonies was felonious assault. He also was convicted of three firearm specifications, pursuant to
{32} Bushner also argues that he received ineffective assistance of counsel because his counsel did not object when the trial court imposed multiple sentences on his firearm specifications. We have already determined, however, that the trial court did not err by imposing multiple sentences. As such, “his ineffective assistance of counsel argument also must fail, as it is premised upon the same error.” El-Jones, 2012-Ohio-4134, at ¶ 45. His sixth assignment of error is overruled.
THE CUMULATIVE EFFECT OF THE TRIAL COURT‘S ERRORS DENIED BUSHNER A FAIR TRIAL.
{33} In his seventh assignment of error, Bushner argues that cumulative errors in the proceeding deprived him of his right to a fair trial. We disagree.
{34} Cumulative error exists only where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus. ““[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.“” State v. Hill, 75 Ohio St.3d 195, 212 (1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). Moreover, “errors cannot become prejudicial by sheer weight of numbers.” Hill at 212.
{35} {73} After reviewing the record, we cannot say that Bushner‘s trial was plagued with numerous errors or that his constitutional right to a fair trial was violated. Therefore, Bushner‘s seventh assignment of error is overruled.
III.
{36} Bushner‘s first assignment of error is sustained on the limited basis set forth therein. His remaining assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
There were reasonable grounds for this appeal.
Judgment affirmed in part, reversed in part, and cause remanded.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
DONNA J. CARR
FOR THE COURT
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.