State v. DonaldsonState v. Donaldson
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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DUHART, P.J.
{¶ 1} Appellant, Kevin Donaldson, appeals the July 1, 2022 decision of the Lucas County Common Pleas Court. For the foregoing reasons, we affirm the lower court’s decision.
{¶ 2} On May 25, 2022, appellant was indicted on two counts; aggravated robbery, a felony of the first degree, in violation of
{¶ 3} A jury trial began June 6, 2022. The following facts are based on testimony obtained during trial.
{¶ 4} The viсtim in this case, M.H., testified that he lived at the Cherry Street Mission on March 8, 2022. On that day, he left the Cherry Street Mission and walked to the Lucky Dollar Store. On his way back, he was approached by a man who identified himself as “J.D. Brown.” The man asked M.H. to light his cigarette, which he did. The two men then engaged in a conversation that concluded with the man asking M.H. for a couple dollars. M.H. gave the man a few dollars, tapped the man on the shoulder as “a kind gesture” and turned around to leave, but after taking two or three steps, M.H. was struck in the head, which caused him to fall. His assailant then “dropped their body weight” upon M.H., and repeatedly struck him in the head. Although M.H. did not see “J.D. Brown” hit him, M.H. believed his assailant was the man that had identified himself as “J.D. Brown.” M.H. testified that he did not see anyone else in the vicinity at the time of his assault. During the assault, the assailant took M.H.’s money and wallet out of his pocket.
{¶ 6} Officer Mitchael Vanderhorst and Officer Sрencer Hastedt from Toledo Police Department (TPD) were both dispatched to St. Vincent Hospital. M.H. provided the officers with a description of “J.D. Brown,” describing him as a black male, bald, about six-two, 240 pounds, in his mid-fifties, with tattoos on his hands, wearing an all red Champion sweatsuit with black Nike tennis shoes.
{¶ 7} After receiving statements from M.H. at the hospital, Officers Vanderhorst and Hastedt conducted a search in the vicinity of the assault. While searching the area, the officers stopped appellant, who appeared to fit the description provided by M.H., with the exception of a black hoodie he was wearing over a red toр. The officers also noticed dried blood on appellant’s hands and fresh abrasions and swelling on his knuckles. Other than the dried blood on his hands, appellant looked clean.
{¶ 8} Appellant was first taken to the safety building and then transported to the jail. As appellant needed to be “medically cleared,” he was taken to St. Vincent Hospital for treatment of the injuries to his hands. While there, appellant stated that “he wasn’t sure how a fistfight could turn into a charge of robbery” and he indicated that the injuries to his hand had occurred that day.
{¶ 10} After thе state rested, appellant made a Crim.R. 29 motion for acquittal, on the basis that the state failed to produce sufficient evidence of his identity as the perpetrator. However, the Crim.R. 29 motion was denied. Appellant was ultimately found guilty of Counts 1 and 2.
{¶ 11} Prior to sentencing, the parties filed sentencing memoranda regarding whether the two convictions should merge for purposes of sentencing. At sentencing, the court concluded that the two offenses did not merge, as appellant had not satisfied his burden to prove that the offenses should merge.
{¶ 12} Appellant was then sentenced to serve a mandatory minimum term of 11 years and a maximum indеfinite term of 16 and a half years for Count 1 (aggravated robbery). In regards to Count 2 (felonious assault), appellant was sentenced to a mandatory minimum term of 8 years and a maximum indefinite term of 12 years. The court ordered these sentences to be served concurrently. Appellant was also found to be a repеat violent offender. For the purposes of sentencing on the repeat violent offender
{¶ 13} This appeal followed the trial court’s judgment.
ASSIGNMENTS OF ERROR
{¶ 14} Appellant raises the following assignments of error:
- The trial court errеd to the prejudice of Appellant in finding that aggravated robbery and felonious assault were not allied offenses for purposes of sentencing
- The trial court erred in denying Appellant’s Crim.R. 29 motion.
- The jury’s verdict was against the manifest weight of the evidence presented at trial.
LAW AND ANALYSIS
{¶ 15} For ease of analysis, we will address appellant’s assignments of error out of order.
Criminal Rule 29 Motion
{¶ 16} In his second assignment of error, appellant argues that the state failed to produce sufficient evidence to identify him as the assailant and therefore erred when it
Standard of Review
{¶ 17} “The standard of review for a denial of a Crim.R. 29 motion is the same as the standard of review for sufficiency of the evidence.” State v. Johnson, 6th Dist. Wood Nos. WD-13-008, WD-13-009, 2014-Ohio-2435, ¶ 11, citing State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995). When reviewing the sufficiency of the evidence, our function is to examine the trial evidence to determine “whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, supersеded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4.
Appellant’s Crim.R.29 motion was properly denied.
{¶ 18} M.H. provided a detailed description of “J.D. Brown,” who M.H. was speaking with immediately before he was hit from behind. Although M.H. did not
{¶ 19} In regard to the photо array, although M.H. did not choose appellant, the photo he chose was of an individual similar in appearance to appellant, and M.H. also stated that his assailant could be number two, which was appellant’s assigned number in the photo array.
{¶ 20} We find this evidence sufficient to convince a rationаl trier of fact of appellant’s guilt beyond a reasonable doubt. Therefore, the motion for acquittal was properly denied.
{¶ 21} Consequently, appellant’s second assignment of error is not well taken.
Manifest Weight of Evidence
{¶ 22} In the third assignment of error, appellant asserts that the jury’s verdict was against the manifest weight of the evidence presented at trial, arguing that “the jury did not fully consider all the evidence in this matter, or lack thereof, prior to determining his guilt on the indicted charges of aggravated robbery and felonious assault.” He contends the evidence was circumstantial, and, as with his claim of insufficient evidence, he points
Standard of Review
{¶ 23} Although we have found that appellant’s conviction is supported by sufficient evidence, we may nonetheless find that it is against the manifest weight of the evidence. State v. Herrera, 2022-Ohio-4769, 204 N.E.3d 1096, ¶ 37 (6th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Where the sufficiency of the evidence analysis “examines whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence’s effect of inducing belief.” Id., citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
{¶ 24} In determining whether appellant’s conviction is against the manifest weight of the еvidence, we must review the record, weigh the evidence and all reasonable inferences drawn from that evidence, consider the credibility of the witnesses and decide, in resolving any conflicts in the evidence, whether the trier of fact “clearly lost its way and created such a manifest miscarriage of justicе that the conviction must be reversed and a new trial ordered.” State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387. We do not view the evidence in a light most favorable to the state; rather, we “sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.‘” State v. Lewis, 6th Dist. Lucas No. L-21-1248, 2022-Ohio-4421, ¶ 22, quoting State v. Robinson, 6th Dist. Lucas No. L-10-
The jury’s verdict was fully supported by the manifest weight of the evidence.
{¶ 25} As previously discussed, M.H. provided a detailed description of “J.D. Brown,” who M.H. was speaking with immediately before he was hit from behind. Although M.H. did not actually see “J.D. Brown” hit him, M.H. was hit after turning away from “J.D. Brown” and taking оnly two or three steps and he did not see anyone else in the vicinity.
{¶ 26} Further, appellant was found near the location where the incident occurred, matching the description given by M.H. Appellant also had abrasions on his hand that he admitted to getting that day while in a fistfight. Although the victim did not choose appellant in a photo array, the photo that he did choose was very similar to appellant’s photo, and he stated that it could be appellant. While appellant claims that the evidence is circumstantial evidence, the Ohio Supreme Court has held that “circumstantial evidence inherently possesses the samе value as direct evidence.” State v. Davis, 76 Ohio St.3d 107, 115, 666 N.E.2d 1099 (1996), citing Jenks, 61 Ohio St.3d at paragraph one of the syllabus, 574 N.E.2d 492.
{¶ 27} For these reasons, we find the jury’s verdict was not against the manifest weight of the evidence. Therefore, appellant’s third assignment of error is not well taken.
{¶ 28} In his first assignment of error, appellant argues that the trial court erred in finding that aggravated robbery and felonious assault were not аllied offenses for the purpose of sentencing. He contends that the offenses were perpetrated during a single course of action with a single animus, and therefore, they should have been merged.
Standard of Review
{¶ 29} We review de novo a trial court‘s ruling as to whether offenses should be merged as allied offenses of similar import under
The trial court properly found aggravated robbery and felonious assault to be non-allied offenses for the purposes of sentencing.
{¶ 30} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which is applied to Ohio citizens through the Fourteenth Amendment, as well as Article I, Section 10 of the Ohio Constitution, protect against, inter alia, multiple punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.
(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 cоunts 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.
{¶ 31} Due to the fact that “the prosecution selects the charges that may be brought based upon the criminal conduct of an accused and that conduct may potentially support convictions of multiple offenses,” it must be determined “whether the conduct of the accused can be construed to constitute a single or more than one offense.” Ruff at ¶ 13. Because
{¶ 32} We ask three questions when determining whether appellant’s conduct supports multiple offenses: “(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation.” Id. at ¶ 31. An affirmative answer to any of these questions will allow separate convictions. Id. The defendant bears the burden to establish that
{¶ 34} In State v. Martin, 6th Dist. Lucas No. L-19-1133, 2021-Ohio-1615, ¶ 38, this court concluded that aggravated robbery and felonious assault were committed with a separate animus “[w]here a victim was first severely beaten, and then robbed.” Here, M.H. was first severely beaten upon the head, resulting in hospitalization, and then was robbed when appellant took the wallet and money out of the victim’s pocket. The evidence supports a finding that an initial attack occurred when M.H. was struck, and once on the ground, another attack occurred when M.H.’s wallet and money were taken by appellant.
{¶ 35} Furthermore, in State v. Johnson, 6th Dist. Lucas No. L-16-1282, 2018-Ohio-1657, ¶ 45, we found that that “[w]here a defendant uses more force than necessary to complete aggravated robbery, he shows separate animus.” Such is also the case here. M.H. is a disabled man, who fell to the ground after the first hit, and then continued to be hit, receiving several fractures to his nose and right orbital socket from the assault. Considering these facts, appellant used more force than necessary to complete the offense of aggravated robbery. Therefore, the evidence supports a finding that the offenses were committed with a separate animus.
{¶ 36} In addition, the evidence also supports a finding that dissimilar import existed, as the harm that resulted from each offense was separate and identifiable. Dissimilar import exists “when the defendant’s conduct constitutes offenses involving
{¶ 37} Consequently, the separate convictions are permitted and the оffenses should not have merged.
{¶ 38} The first assignment of error is not well taken.
CONCLUSION
The judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Myron C. Duhart, P.J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.