STATE OF OHIO, Appellee, - vs - ROBERT A. CLOWERS, Appellant.
CASE NO. CA2019-01-009
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
11/12/2019
[Cite as State v. Clowers, 2019-Ohio-4629.]
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, Batavia, Ohio 45103, for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for appellant
M. POWELL, J.
{¶ 1} Appellant, Robert A. Clowers, appeals his convictions and sentences from the Clermont County Court of Common Pleas for felonious assault and kidnapping. For the reasons stated below, we affirm his conviction and sentence.
{¶ 2} On the evening of January 7, 2018, appellant asked his pregnant girlfriend
{¶ 3} As arranged, appellant picked up the victim and began driving through the back roads of Clermont County. Eventually, appellant stopped the vehicle at the cemetery in East Fork State Park. The conversation turned heated as appellant demanded to know why the victim had gone to see her husband. During the conversation, appellant got out of the vehicle and retrieved something from the trunk. Appellant then returned to sit in the vehicle‘s driver‘s seat and placed whatever he had taken from the trunk into the back seat or back floorboard area of the car.
{¶ 4} After returning to the car, appellant and the victim continued to converse. During this exchange, appellant told the victim that she was going to die that night. Initially, the victim did not believe the threats, however, appellant placed his hands around her throat and began strangling her. The strangulation lasted for nearly thirty seconds before the victim was able to push appellant off her. At some point, appellant explained that he was going to kill her and then bury her in the cemetery. The victim asked for appellant to stop and take her home, but appellant refused. Around this time, appellant also told her that he was going to cut off her head.
{¶ 5} Subsequently, appellant reached behind the front seats and grabbed a roofing hammer.1 Appellant then brandished the roofing hammer and forced its blade towards the victim‘s neck. Fortunately, the victim was in a defensive position with her knees raised up to protect her stomach and her hands positioned to block the incoming blade. Summoning
{¶ 6} In one of the lulls in appellant‘s attacks, appellant ordered the victim to call her husband to tell the husband she was going to die. The victim instead gave appellant the telephone number of a mutual friend. Appellant called this person and told the friend that he was going to kill the victim. Appellant then declared that he was going to crash the car in another effort to kill them both. Appellant began driving around the parking lot in tight circles, colloquially known as a “doughnut” maneuver, before heading out to the main road. As the vehicle slowed for a stop sign, the victim escaped from the vehicle and quickly put distance between herself and appellant.
{¶ 7} Another motorist saw the victim as she exited from appellant‘s vehicle. He initially thought there was an altercation between appellant‘s vehicle and the vehicle behind them, but after seeing the victim move past the second vehicle, he decided it was something else entirely and offered his assistance to the victim. About the time that he contacted the victim, appellant pulled alongside the motorist‘s vehicle and briefly exclaimed that he could not stay because his car was overheating. Appellant then drove away. The motorist called 911.
{¶ 8} A deputy from the Clermont County Sheriff‘s Office arrived on scene and began talking to the victim and the motorist. Based on the information from the victim, the deputy transmitted a description of the vehicle and appellant to other law enforcement personnel. Another deputy found appellant‘s car crashed in a ditch some distance away. Deputies searched the vehicle and found a roofing hammer in the backseat. The deputies then unsuccessfully searched the area for appellant with a canine team. The deputies were
{¶ 9} Based on the foregoing events, a Clermont County Grand Jury indicted appellant for: kidnapping, a first-degree felony in violation of
{¶ 10} Appellant waived his right to a jury and the case proceeded to a bench trial. At trial, the prosecution dismissed the
{¶ 11} Appellant now appeals, raising four assignments of error for review.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY FAILING TO GRANT DEFENDANT‘S CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 16} In the first and second assignments of error, appellant argues that the trial court erred by denying his
{¶ 17} Pursuant to
{¶ 18} On the other hand, a manifest weight of the evidence challenge examines the inclination of the greater amount of credible evidence to support one side over the other. State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 42. On review, the appellate court must
look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact 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. Green, 12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 26. On a manifest weight of the evidence review, an appellate court will overturn a conviction only in an extraordinary circumstance, to correct a manifest injustice, where the evidence weighs heavily in favor of acquittal. State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The determination that a conviction is supported by the manifest weight of the evidence will be dispositive of the sufficiency of the evidence issue. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 19} To convict appellant of felonious assault, the prosecution had to prove appellant knowingly caused or attempted to cause physical harm to the victim or her unborn by means of a deadly weapon or dangerous ordnance.
{¶ 20} An attempt occurs when a person engages in conduct that, if successful, would constitute or result in the offense and that offense required a culpable mental state of either purposely or knowingly.
{¶ 21} After review of the record, we find that the evidence produced at trial is sufficient to convict appellant of felonious assault, because appellant‘s actions constituted a substantial step in knowingly causing physical harm to the victim using a deadly weapon. Appellant‘s conviction for this offense was not against the manifest weight of the evidence.
{¶ 22} Appellant does not contest the fact that the roofing hammer is a deadly weapon. We find that it is a deadly weapon as it is an instrument capable of inflicting death and was used as a weapon against the victim.
{¶ 23} The victim testified that appellant told her that he was going to kill her and cut
{¶ 24} This court finds that appellant‘s actions with the weapon constituted a substantial step in perpetrating felonious assault. Appellant‘s efforts to use a bladed implement against the victim is itself sufficient evidence to withstand a
{¶ 25} Consequently, after viewing the evidence in the light most favorable to the prosecution, we find any reasonable trier of fact could have found all the essential elements of the crime proven beyond a reasonable doubt. Likewise, this is not a case where the evidence weighs heavily in favor of acquittal. The trial court, as finder of fact, did not clearly lose its way and create a manifest miscarriage of justice finding appellant guilty of the felonious assault. The evidence was sufficient to find appellant guilty and his conviction for felonious assault is not against the manifest weight of the evidence.
{¶ 26} Accordingly, appellant‘s first and second assignments of error are overruled.
{¶ 27} Assignment of Error No. 3:
{¶ 28} THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT MERGING
{¶ 29} In the third assignment of error, appellant argues that the trial court erred by not merging the kidnapping offense with the felonious assault offense. Appellant asserts that the offenses did not involve separate harms, were not committed with a separate animus as to each, and were not committed separately, i.e. in separate transactions.
{¶ 30} The United States and Ohio Constitutions prohibit the government from subjecting a person to multiple punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 10. This protection is codified in
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
Therefore, pursuant to
{¶ 31} As charged, the kidnapping offense prohibited conduct that removes another person from the place where that person is found or restrains the liberty of that person by force, threat or deception, for the purpose of terrorizing or inflicting serious physical harm on that person.
(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.
Id. at the syllabus.
{¶ 32} It is the appellant‘s burden to establish entitlement to
{¶ 33} Here, appellant has failed to establish that he is entitled to have his offenses merged under
{¶ 34} Appellant‘s assault with the deadly weapon ended when the victim successfully fought him off. Thereafter, appellant extended his restraint of the victim in the vehicle, doing doughnuts around the cemetery parking lot and driving away to facilitate a different method to inflict harm upon the victim. Thus, the kidnapping offense extended far beyond what was necessary for the appellant to commit the felonious assault and involved not only separate conduct but also a separate animus.
{¶ 35} Furthermore, the record demonstrates that the victim suffered different harms from the offenses. The failed attack with the hammer was to cause physical harm. The kidnapping offense, including the erratic driving and threat to intentionally wreck the vehicle, subjected the victim to prolonged loss of liberty completely separate from that involved in the felonious assault.
{¶ 36} Therefore, the kidnapping and felonious assault are not allied offenses of similar import and not subject to merger. Accordingly, the trial court did not err when it convicted appellant for the two offenses. Appellant‘s third assignment of error is overruled.
{¶ 37} Assignment of Error No. 4:
{¶ 38} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE PRISON TERMS.
{¶ 39} In the fourth assignment of error, appellant argues that the trial court erred by imposing consecutive prison sentences because consecutive service was not supported by the record. Appellant concedes that the trial court made the statutorily required findings,
{¶ 40} An appellate court reviews felony sentences according to the standard of review set forth in
{¶ 41}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 42} Here, appellant has failed to show by clear and convincing evidence how the trial court‘s findings were unsupported by the record. At the sentencing hearing, based on a presentence-investigative report, the trial court found that appellant had a lengthy criminal history, including several felony convictions, and had previously served time in prison. His prior convictions included offenses of violence and substance abuse. In making its consecutive sentence findings, the trial court stated:
And in imposing consecutive sentences, I will make the following findings: consecutive sentences are necessary to protect the public from future crime and to punish the defendant. They are not disproportionate to the seriousness of his conduct and to the danger he poses to the public. These are two offenses and I analyzed the difference in the offenses in terms of the decision I entered this morning on this issue of merger. The harm caused by the multiple offenses is so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the defendant‘s conduct and his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant. This is a situation where somebody has—you can affect the course of the rest of your life by what you do that is
terrible in a single moment of time. In this case, as [the prosecutor] said, it took—it was about an hour of time.
Consequently, the record shows that the trial court engaged in the proper analysis. As indicated from the above statement, the trial court specifically addressed the fact that the criminal act was a significant event for the victim that caused a terrible result despite only occurring for a “single moment.” Furthermore, the trial court made four findings as to why consecutive sentences were necessary, specifying that the course of conduct caused great or unusual harm and appellant has a history of criminal conduct. While the trial court did not repeat the specific findings of fact it made during the guilt phase, it referenced those findings as part of its decision for the sentences.
{¶ 43} The trial court also referred to the principles and purposes of sentencing pursuant to
{¶ 44} Accordingly, appellant‘s fourth assignment of error is overruled.
{¶ 45} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.