STATE OF OHIO v. JAMES A. DWYER
Appellate Case No. 2021-CA-16
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
February 18, 2022
[Cite as State v. Dwyer, 2022-Ohio-490.]
Trial Court Case No. 2020-CR-831 (Criminal Appeal from Common Pleas Court)
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor‘s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road, Fairborn, Ohio 45324 Attorney for Defendant-Appellant
TUCKER, P.J.
I. Facts and Procedural History
{¶ 2} On December 23, 2020, Dwyer was indicted on one count of attempted felony murder in violation of
{¶ 3} Prior to trial, the trial court dismissed the counts of attempted felony murder and having a weapon while under disability. The matter proceeded to a jury trial on the remaining counts, where the following evidence was adduced.
{¶ 4} Both Dwyer and Tyree Day were romantically involved with a woman named Shayla Webb. On December 16, 2020, Day was with Webb at her Fairborn apartment. At some point, Dwyer came to the apartment, and his presence resulted in a physical
{¶ 5} Day remained at Webb‘s apartment overnight. At approximately 6:30 a.m. on December 17, Day exited the bathroom and encountered Dwyer, who had returned to the apartment.1 Dwyer brandished a handgun and ordered Day to accompany him toward the apartment door. As Dwyer opened the door, Day shoved him and ran out of the apartment building. Day ran across the street toward an apartment building located several buildings away from Webb‘s residence. As he got to the back of that building, he lost his shoe, tripped, and fell to the ground. At this point, Dwyer caught up to Day.
{¶ 6} While Day remained on the ground, Dwyer pointed the gun at Day‘s head and pulled the trigger two times. Day testified that the gun “clicked” but did not fire. Tr. p. 38. Dwyer then ordered Day to give him Day‘s shoes, belt and jacket. After the items were handed over, Dwyer shot Day in the leg and ran away.
{¶ 7} Fairborn Police Officer Joseph Walton was dispatched to Webb‘s apartment building following multiple calls regarding a disturbance and a man with a weapon. During his conversation with Webb, Walton issued a description of the perpetrator.
{¶ 8} Fairborn Police Officer Matthew Bracey was en route to the scene when he heard Walton‘s description of the perpetrator. When Bracey arrived at an intersection several buildings away from Webb‘s apartment, he pulled his car over to the side of the road and stopped in order to begin searching for the suspect. A man, later identified as Day, appeared and knocked on the passenger-side window of Bracey‘s cruiser. When
{¶ 9} No weapon was found on Dwyer when he was detained, and a seаrch of the area did not produce a gun. However, the items of clothing taken from Day were located at the spot where Bracey had originally observed Dwyer. Day was transported to a local hospital for treatment of the gunshot wound to his leg.
{¶ 10} Dwyer was transported to the police department, where he was interviewed by Sergeant James Hern and Detective Sean Pettit. Dwyer stated that he had been at Webb‘s apartment at her request. Dwyer further stated that he took Webb and a female friend of Webb‘s to a nearby gas station; when they returned to Webb‘s apartment, Dwyer and Day argued. Dwyer indicated that Day had had a gun and that Day had chased Dwyer from the apartment. Dwyer also indicated he had been knocking on the door of an apartment located in the building where Bracey had originally spotted him. However, he admitted that he did not know the tenant of that apartment. When asked about Day‘s clothes that had been found near him, Dwyer stated that he had been walking through the complex grounds when he observed the items on the ground and decided to take
{¶ 11} The jury convicted Dwyer on the three counts presented by the State and the three firearm specifications. The trial court imposed an indefinite minimum prison term of 10 years with a maximum prison term of 15 years for the attempted murder conviction; a minimum and maximum prison term of eight years for the aggravated robbery conviction, and a minimum and maximum prison term of six years for the felonious assault conviction. All three terms were ordered to run consecutively, for a minimum prison term of 24 years and a maximum prison term of 29 years. The trial court also imposed three-year prison sentences for each of the firearm specifications to be run consecutively and prior to the sentence of 24 to 29 years, for an aggregate prison term of 33 to 38 years.
{¶ 12} Dwyer appeals.
II. Sufficiency of the Evidence
{¶ 13} Dwyer‘s first assignment of error states as follows:
APPELLANT‘S CONVICTION FOR ATTEMPTED MURDER IS BASED UPON INSUFFICIENT EVIDENCE
{¶ 15} An appellate court‘s function in reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In essencе, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 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. Jenks at 273.
{¶ 16} Dwyer was convicted of attempted murder in violation of
{¶ 18} Dwyer first asserts that the State failed to present legally sufficient evidence because it did not produce the firearm alleged to have been used during the commission of the offenses. We disagree. This court has previously noted that the existence of a firearm “may be inferred from the surrounding facts and circumstances.” (Citations omitted.) State v. Vann, 2d Dist. Montgomery No. 22818, 2009-Ohio-5308, ¶ 27.
{¶ 19} Day testified that Dwyer pointed a gun at him. The jury was free to believe all, part, or none of Day‘s testimony, and it apparently chose to believe this portion of his testimony. The fact that Day actually suffered a gunshot wound to his leg obviously bolsters his testimony. Additionally, the record demonstrates that Dwyer had time and the opportunity to conceal a gun prior to the arrival of the police. The mere fact that the police were unable to find a gun during their search of the area did not preclude the conclusion that Dwyer had a gun.
{¶ 20} Dwyer next asserts that the State failed to prove he acted purposefully. Again, we disagree. “[A] defendant‘s intent may be inferred from all the surrounding facts and circumstances of the crime.” State v. McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 11, citing State v. Were, 1st Dist. Hamilton No. C-030485, 2005-Ohio-376, ¶ 180, quoting State v. Herring, 94 Ohio St.3d 246, 266, 762 N.E.2d 940 (2002). “Particularly relevаnt here, ‘in an attempted-murder prosecution, a defendant‘s specific
{¶ 21} Construing the evidence most strongly in favor of the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Dwyer purposely attempted to cause Day‘s death. Therefore, the first assignment of error is overruled.
III. Manifest Weight of the Evidence
APPELLANT‘S CONVICTIONS FOR ATTEMPTED MURDER, AGGRAVATED ROBBERY, AND FELONIOUS ASSAULT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
{¶ 22} Dwyer‘s argument in support of this assignment of error centers upon his assertion that Day‘s testimony was not credible.
{¶ 23} A weight-of-the-evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believablе or persuasive. State v. Jones, 2d Dist. Montgomery No. 28179, 2019-Ohio-2940, ¶ 13, quoting State v. Wilson, 2d Dist. Montgomery No. 2258, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the manifest weight of the evidence, an
{¶ 24} In addition to attempted murder, Dwyer was convicted of felonious assault in violation of
{¶ 25} Dwyer‘s assertion that Day was not credible hinges upon his assertion that Day was under the influence of marijuana. He also claims that Day‘s credibility was further damaged by the lack of corroborating witnesses, the failure to find the gun, and the fact that Day‘s clothes were not in Dwyer‘s possession when Dwyer was apprehended.
{¶ 26} During his testimony, Day stated that he had been robbed and then shot by Dwyer. Day candidly admitted that he had smoked two marijuana joints on the evening
{¶ 27} From our examination of the record, we cannot say that the jury clearly lost its way in crediting Day‘s testimony. There was evidence presented to the jury upon which it could have relied in finding Dwyer guilty of all three charges. Therefore, Dwyer‘s second assignment of error is overruled.
IV. Merger Analysis
{¶ 28} The third assignment of error presented by Dwyer states:
THE TRIAL COURT ERRED IN NOT MERGING THE OFFENSES OF ATTEMPTED MURDER AND FELONIOUS ASSAULT
{¶ 29} Dwyer contends that the offenses of attempted murder and felonious assault should have been merged. In support, he asserts that his “actions, if believed,
{¶ 30} The need to discern whether crimes are allied offenses arises from the Double Jeopardy Clause of the Fifth Amendment, which protects individuals from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio Legislature has codified this protection 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.
{¶ 31} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio clarified the applicable standard to use when determining whether offenses merge as allied offensеs of similar import, as follows:
Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant‘s conduct to determine whether one or more convictions may result because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can
govern every situation. As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct suрports 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? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶ 32} The de novo standard of review is utilized with regard to a trial court‘s decision on merger. State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 10.
{¶ 33} To establish the elements of attempted murder in this case, the State had to prove that Dwyer engaged in conduct that, if successful, would have resulted in purposеly causing the death of another.
{¶ 34} The conduct of pointing and shooting a gun at a person can result in the death of that person. The same conduct can also fall short of causing death but can cause physical harm. However, in this case, the convictions for both attempted murder and felonious assault were proper because they involved separate conduct. The evidence, primarily consisting of Day‘s testimony, reflected that the offense of attempted
{¶ 35} Based upon the facts of this case, we cannot say that the trial court erred in failing to merge the convictions for attempted murder and felonious assault. Accordingly, the third assignment of error is overruled.
V. Consecutive Sentences
{¶ 36} The fourth assignment of error states as follows:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
{¶ 37} Dwyеr challenges the trial court‘s imposition of consecutive sentences. Specifically, he asserts the trial court did not engage in the correct statutory analysis for the imposition of consecutive sentences. He further asserts that the record does not support consecutive sentences.
{¶ 38} When reviewing felony sentences, appellate courts apply the standard of review set forth in
(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 , or2929.18 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.
{¶ 40} “[A] trial court is required to make the findings mandated by
{¶ 41} A review of the record demonstrates that the trial court made the required statutorily consecutive-sentence findings at the sentencing hearing and incorporated those findings into the judgment entry, including the factors set forth in
{¶ 42} Dwyer also suggests that the trial court erred because it did not consider
{¶ 43} The fourth assignment of error is overruled.
VI. Third Firearm Specification
{¶ 44} Dwyer‘s fifth assignment of error states:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT FOR A THIRD THREE YEAR FIREARM SPECIFICATION
{¶ 45} Dwyer asserts the trial court erroneously imposed a prison term for the firearm specification accompanying the felonious assault conviction.
{¶ 46} Although a trial court ordinarily may impose only one additional three-year prison term for multiple firearm specifications committed as part of the same act or transaction (see
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, feloniоus assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section 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 or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remаining specifications.
{¶ 47} Here, Dwyer was convicted of attempted murder, aggravated robbery, and felonious assault and, as to each count, he was also convicted of a three-year firearm specification of the type described under
{¶ 48} A review of the sentencing hearing transcript reveals that the trial court referred to the prison term imposed for the firearm specification accompanying the felonious assault conviction as “an additional mandatory term of 3 years mandatory incarceration * * *.” Tr. p. 276. Likewise, the court‘s sentencing entry refers to the prison term for the third firearm specification as “an additional MANDATORY term of 3 years actual incarceration.”
{¶ 49} Under
VII. Imposition of $10,000 Fine
{¶ 51} Dwyer‘s sixth assignment of error states:
THE TRIAL COURT ERRED IN IMPOSING A FINE OF $10,000.00
{¶ 52} Dwyer challenges the $10,000 fine imposed by the trial court. In support, he claims that the trial court did not consider his ability to pay the fine. Dwyer further asserts that the record demonstrates that he was indigent during the trial proceedings, as the public defender was appointed to represent him.
{¶ 53} Before a court may impose a financial sanction, it is required to consider the defendant‘s present and future ability to pay.
{¶ 54} We begin with the claim that Dwyer‘s indigency prevented a finding of an ability to pay the fine. The Tenth District Court of Appeals has addressed this issue, stating: “[a]n offender‘s indigency for purposes of receiving appointed counsel is separate and distinct from his or her indigency for purposes of avoiding having to pay a mandatory fine.” State v. Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, ¶ 27, quoting State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, 922 N.E.2d 248, ¶ 79 (10th Dist.), citing State v. Gipson, 80 Ohio St.3d 626, 631-33, 687 N.E.2d 750 (1998). The court went on to state: “there is a ‘difference between a defendant‘s inability to raise an initial retainer in order to obtain triаl counsel and the ability to gradually pay an imposed mandatory fine over a period of time.‘” Id., citing State v. Burnett, 10th Dist. Franklin No. 08AP-304, 2008-Ohio-5224, ¶ 9, quoting State v. Banks, 6th Dist. Wood No. WD-06-094, 2007-Ohio-5311, ¶ 15. Thus, the court concluded an affidavit of indigency for the purpose of receiving appointed counsel cannot be used to demonstrate indigency for the purpose of avoiding payment of a fine after conviction. Id.
{¶ 55} We next address the issue of whether the trial court properly considered Dwyer‘s ability to pay the fines. There is no question the court was authorized to impose a fine. Further, the amount of the fine was well within the range of financial sanctiоns permitted by
{¶ 56} Although no PSI was ordered in this case and no financial information was introduced, there was information regarding Dwyer‘s ability to pay set forth within his own sentencing memorandum. In his memorandum, Dwyer stated that he was gainfully employed at the time of the offenses and that he was capable of working. At the time of sentencing, Dwyer was 22 years old, and he will be at least 56 when he is released.
{¶ 57} We have held that when the record contains some evidence that a defendant was previously employed, is young, and is in good health, he may be considered employable when he is released from prison, even if the prison term is lengthy. State v. Dean, 2018-Ohio-1317, 110 N.E.3d 739, ¶ 76-78 (2d Dist.).
{¶ 58} On this record, we cannot conclude that the trial court‘s decision was clearly and convincingly contrary to law. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Accordingly, the sixth assignment of error is overruled.
VIII. Conclusion
{¶ 59} Since Dwyer‘s fifth assignment of error is sustained, the portion of the judgment imposing of a prison term for the firearm specification accompanying the felonious assault conviction is reversed, and the matter is remanded to the trial court for
WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Marcy A. Vonderwell
David R. Miles
Hon. Michael A. Buckwalter