State v. FarraState v. Farra
Rendered on the 29th day of April, 2022.
MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
EPLEY, J.
I. Facts and Procedural History
{¶ 2} An 85-year-old widower, Eugene Deaton, lived alone in his Wileray Avenue home in Miamisburg and often played the slot machines at two local racinos, Miami Valley Gaming in Monroe and Hollywood Casino in Dayton. On January 11, 2020, Deaton was playing slots at Hollywood Casino when Jessica Boomershine approached him and asked if he was having any luck. He answered in the negative, and she responded that she was not either, commenting, “I’m broke, hungry, and homeless.” Trial Tr. at 116. Deaton offered to take her to his house for some food and a shower. Boomershine took him up on the offer, and the two left the casino in Deaton’s car.
{¶ 3} The pair went back to Deaton’s house, where Boomershine ate a sandwich, took a shower, and according to trial testimony, performed oral sex on Deaton. The following morning, the two exchanged numbers (Boomershine left hers on a post-it note), and then Deaton drove Boomershine back to the casino and gave her $10. The next day, Boomershine showed up at Deaton’s house again, stayed for an indeterminate length of time, and then Deaton took her back to Hollywood Casino. She called again that evening, but Deaton told her he could not help. Boomershine again came to Deaton’s house
{¶ 4} On the evening of January 15, 2020, Deaton came home from the casino and went to bed around 9 p.m. Shortly thereafter, he was awakened by a bright light shining in his eyes; a strange man with a gun was standing over his bed. The man put the gun to Deaton’s neck and told him to stay still. Deaton, however, reached for his gun, a .38 Smith & Wesson revolver that he kept near his bed. The man, who was later identified as Farra, got to the gun first and fired a shot into the pillow only inches from Deaton’s head. The bullet went through the pillow and ricocheted off the wall. Farra then jammed the gun against Deaton’s throat and demanded to know where his billfold was; Deaton replied that it was in the top drawer of his dresser.
{¶ 5} Next, Farra got Deaton out of bed and began to ransack the house with the help of his accomplice, Boomershine. Deaton was led out of the bedroom and made to lay down on the hallway floor. After a short time on the floor, Deaton’s hands were tied up, and he was taken to his car, where the intruders put a covering over his head and forced him to lay face down on the backseat floorboard. Once in the car, Boomershine drove and Farra was positioned in the backseat to control Deaton.
{¶ 6} Boomershine and Farra demanded that Deaton reveal his ATM pin and his Social Security number. Deaton initially gave his captors a fake number, but after being beaten with the gun again and having it shoved in his mouth, Deaton told them the real information. They then stopped at an ATM and withdrew money.
{¶ 7} As they were driving, Deaton made the decision to fight back and try to dispossess the gun from Farra. That choice backfired, however. Deaton was left with
{¶ 8} After driving around some more, Boomershine headed to Hollywood Casino and dropped herself off. With Deaton securely in the trunk, Farra then drove to the nearby CSX railyard to dump evidence. Deaton felt the car come to a stop again and heard a door open and close. After waiting five or ten minutes to make sure his captors were gone, Deaton pulled the emergency trunk release and emerged to find himself in a giant Rumpke recycling center. Because it was the middle of the night, the facility was completely empty, so Deaton wandered around looking for a phone to call for help. The facility’s surveillance video showed him with only one sock, bloody clothes, and injuries to his arms, face, and neck.
{¶ 9} Eventually, Deaton found the break room and waited for an employee to arrive. At around 3:20 a.m., Marc Hyer arrived for work and called the police. Medics were called as well. Hyer testified: “I found the gentleman at the table all bleeding. His arms was [sic] wide open.” Trial Tr. at 336. An officer who responded to the scene described the wounds by invoking “The Walking Dead,” declaring that the skin was just falling off the bone. Trial Tr. at 475.
{¶ 10} Law enforcement officers descended on the scene, not realizing that Farra was still in the facility. Video surveillance footage showed that after Farra parked and exited the car, he climbed a nearby concrete retaining wall inside the building and hid for
{¶ 11} Deaton told Dayton Police Officer Stephen Quigney that his female abductor was the same woman he had had interactions with over the past few days named “Boomershine,” and then gave her general physical descriptors. Officer Quigney was able to input that information into his MIS system, and he found a field identification card that linked Boomershine to Hollywood Casino. He then accessed her driver’s license picture, which matched the description given by Deaton. Officer Quigney was also informed that Deaton’s male abductor had an “S” shaped tattoo on the left side of his face. Officer Quigney then learned that there was a male associated with Boomershine with a large facial tattoo – Farra. Deaton also informed law enforcement that two shots had been fired that night: the first shot went through his pillow in his bedroom, and a second round was fired in the car while he was being driven around. He did not know the circumstances surrounding the second shot, though, because his head had been covered.
{¶ 12} Miamisburg Detective Jason Threlkeld soon arrived at the hospital and was informed by Officer Quigney about what happened and the potential suspects. He then spoke with Deaton and was struck by the severity of his injuries. “I immediately observed very [horrific] severe wounds on both of his arms and his hands, some on his neck [and] face[.]” Trial Tr. at 643. After getting the story from Deaton, Detective Threlkeld notified Miamisburg Detective Sergeant Jeff Muncy about the potential complexity of the investigation due to the multitude of crime scenes.
{¶ 13} Detective Muncy got other Miamisburg detectives involved and enlisted the
{¶ 14} Jeffrey Yount, an Oakwood detective, and Centerville Detective Chad Eckenrode, both part of the TCSU task force, were sent to Hollywood Casino to obtain surveillance footage. While they were there, they received a call that a CSX Railroad employee had found items that could be related to their investigation. Det. Yount testified that the CSX facility was almost immediately next door to the casino, so he and Detective Eckenrode went there. When they arrived, the detectives learned that rail workers had found a “Dopp Kit” (toiletries bag) and a revolver in or near a dumpster next to the tracks. Inside the bag detectives found a Case knife (a brand of collectable knives), a wallet, a Xenia Municipal Court Probation Department business card from Carlos Walker that read: “Next Appointment Date: 1/22 at 2pm,” and a post-it note with “Jessica” and a phone number. Inside the wallet were Deaton’s identification card, his deceased wife’s identification card, an Air Force service card, and credit cards belonging to Deaton.
{¶ 15} As the day of January 16 progressed, investigators got more leads. Detective Muncy called the number on the Xenia Municipal Court Probation Department card and spoke to Carlos Walker, a probation officer with the court. He confirmed that the 2 p.m. appointment on January 22 belonged to Farra, who had just gotten out of jail a day
{¶ 16} There was a large law enforcement response to the Drummer Avenue location. Miamisburg Detective Justin Small testified that when officers knocked, Farra’s grandfather opened the door. When he backed out of the way, Farra could be seen sitting in a chair, just inside the door. He was ordered to the floor, handcuffed, and then brought outside without incident. It was soon discovered, however, that Farra had been shot in the leg, so he was transported to the hospital for treatment. Authorities found a Kyocera flip phone, Case knives, and a flashlight on his person. Detective Small packaged up those items along with the bloody pants Farra had been wearing.
{¶ 17} Once medical personnel were done treating his wounds, Farra expressed his desire to speak with Detectives Muncy and Threlkeld. During his interview, Farra admitted to being a part of the incident(s) with Deaton but insisted that Boomershine and “some black guys” had forced him to take part to pay off Boomershine’s drug debt.
{¶ 19} Farra filed a motion for competency and sanity evaluations on February 18, 2020. He was examined by Dr. Scott Kidd who, in his report, determined to a reasonable degree of psychological certainty that Farra was competent and was ineligible for a not guilty by reason of insanity (NGRI) plea. As a result, the trial court found him competent to stand trial. On March 23, 2020, Farra filed a motion to suppress. After a hearing on May 1, 2020, the trial court overruled his motion.
{¶ 20} Finally, on October 19, 2020, the case progressed to a bench trial. Over the course of the three-day trial, the State presented 18 witnesses and 191 exhibits. Farra did not enter any exhibits or testify himself, and ultimately, the trial court found him guilty as charged.
{¶ 21} Both parties filed sentencing memoranda prior to the November 3, 2020 disposition. Prior to sentencing Farra, the trial court merged Counts 2, 9, and 10 with Count 1 (aggravated burglary - physical harm). Counts 4 and 11 were merged with Count 3 (aggravated robbery - deadly weapon), and Count 6 was merged with Count 5
{¶ 22} Farra appeals, raising 12 assignments of error.
II. Competency and sanity evaluations
{¶ 23} In his first assignment of error, Farra argues that the trial court failed to comply with
{¶ 24} If the issue of a defendant’s competence to stand trial is raised, the trial court may order evaluations of the defendant’s current mental condition, or in the case of a NGRI plea, the mental condition at the time of the offense.
{¶ 25} We review a trial court’s decision regarding competency evaluations for an abuse of discretion. State v. Curry, 2d Dist. Greene No. 2012-CA-50, 2014-Ohio-3836, ¶ 40. To constitute an abuse of discretion, a trial court’s action must be arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). “A trial court’s finding that a defendant is competent to stand trial will not be disturbed where there is some reliable and credible evidence supporting that finding.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 33.
{¶ 26} In this case, Farra concedes that because there was no objection to the competency/NGRI evaluations at the trial court level, he has waived all but plain error on appeal. Plain error exists “if the trial outcome would clearly have been different, absent the alleged error in the trial court proceedings.” State v. Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-Ohio-5399, ¶ 15.
{¶ 27} Farra filed a motion for “mental competency evaluation of defendant and sanity examination” on February 18, 2020, and the following day, in two separate orders, the trial court ordered both evaluations. The evaluations were done by Dr. Scott Kidd, and
{¶ 28} Nevertheless, Farra now argues that the trial court erred in making its competency finding because Dr. Kidd did not prepare separate reports on the issues of competency and NGRI. The record, however, belies that assertion. First, Farra concedes in his brief that there were two reports. “(1) Both Report(s) basically reflect a mirror image of each other; and (2) Both Report(s) were comprised of identical examinations which clearly reflect Appellant was suffering from substantial mental health * * * irregularities[.]” (Emphasis added.) Appellant’s Brief at 8-9. The record also indicates that the trial court received and reviewed two separate reports. Forensic Report Hearing Tr. at 2 (“[T]he Court received forensic reviews for competence and for NGRI from Dr. Scott Kidd.“).
{¶ 29} Farra also contends that the NGRI report “was never actually ‘filed with the Court’ as statutorily required[.]” Appellant’s Brief at 8. On this point, Farra is right. While it is undisputed that both parties received, reviewed, and stipulated to the contents of the reports, and that the court received and reviewed them, no one ever filed Dr. Kidd’s reports with the clerk of courts as required by the statute. While this is technically an error, it is not one that made any practical difference in the outcome of the proceedings, as all
{¶ 30} We find, therefore, that while the trial court erred by not filing the competency and NGRI reports with the clerk of courts as required by statute, the error does not rise to the level of plain error because the outcome of the trial would not have been different, and Farra has not expressed any issues with the contents of the reports themselves. The first assignment of error is overruled.
III. Suppression Issues
{¶ 31} In his second assignment of error, Farra avers that the trial court erred when it overruled his motion to suppress. While his brief is less than clear about the arguments he intends to make on the topic, the State has discerned three arguments that we will address: (1) Farra did not knowingly, intelligently, and voluntarily waive his Miranda rights; (2) his statements were taken under circumstances that violated his Fourth Amendment right to be free from unlawful searches and seizures; and (3) the “ping” technology used to help locate him constituted a violation of his Fourth Amendment rights.
{¶ 32} An appeal from a ruling on a motion to suppress presents a mixed question of facts and law. State v. Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 15 (2d Dist.). When considering a motion to suppress, the trial court takes on the role of trier of fact and is in the best position to resolve factual questions and assess the credibility of witnesses. State v. Turner, 2015-Ohio-4612, 48 N.E.3d 981, ¶ 10 (2d Dist.). As a result, we must accept the trial court’s findings of fact if they are supported by competent and credible evidence. Id. “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the
Miranda Issues
{¶ 33} Under the
{¶ 34} An individual may waive his Miranda rights only if the waiver is made knowingly, intelligently, and voluntarily. Miranda at 444. To be voluntary, a waiver of Miranda rights need not be the product of a free will, it simply means that the suspect’s decision was free from official coercion. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L.Ed.2d 473 (1986). The validity of the waiver will be based on the totality of the circumstances including the age, mentality, prior criminal experience of the accused, the length, intensity, and frequency of interrogation, as well as the conditions surrounding the interrogation. State v. Hetzel, 2d Dist. Montgomery No. 14411, 1996 WL 391730, *3 (July 12, 1996), citing State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976). “What is
{¶ 35} Waiver can be inferred where a defendant speaks to officers after being advised of his rights and indicating that he understands them. State v. Dillon, 2016-Ohio-1561, 63 N.E.3d 712, ¶ 59. See Berghuis v. Thompkins, 560 U.S. 370, 388-389, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (“[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police.“). This is even true if the suspect refuses to sign a waiver form. Dillon at ¶ 59. “Where a suspect speaks freely to police after acknowledging that he understands his rights, a court may infer that the suspect implicitly waived his rights.” State v. Murphy, 91 Ohio St.3d 516, 519, 2001-Ohio-112, 747 N.E.2d 765.
{¶ 36} Here, both parties agree that at the time of his interview at the hospital with Detectives Muncy and Threlkeld, Farra was under arrest (in custody) and thus was required to be informed of his Miranda rights before answering questions. The record is very clear that Farra’s Miranda rights were explained, and that he voluntarily waived them.
{¶ 37} According to the audio recording of Farra’s hospital interview and suppression hearing testimony, Farra confirmed from the very beginning that he wanted to speak with the detectives, and according to testimony from Detective Muncy, Farra
{¶ 38} Farra also argues his waiver was invalid because he was under the influence of drugs or suffering from severe mental illness and intellectual disability at the time of his hospital interview. Again, there is no evidence in the record to support that assertion. First, as to the claim that Farra was under the influence of drugs during the interview, his own words undermine that contention. On the recording, Farra explicitly denied being under the influence of drugs or alcohol and told the detectives that he was not even on any hospital-provided medication. As to the claim that he was suffering from severe mental illness and intellectual disability, there is simply nothing in the record to back that up.
{¶ 39} Based on the record before us, we conclude that Farra knowingly, intelligently, and voluntarily waived his Miranda rights.
Seizure
{¶ 40} Farra also argues that “the statements obtained from said interview(s) were taken under circumstances which violated his Fourth Amendment right to be free from unlawful searches and seizures.” Appellant’s Brief at 11. While his brief gives no further
{¶ 41} The
{¶ 42} A person has been seized for the purposes of the Fourth Amendment when a law enforcement officer, by means of physical force or show of authority, has in some way restrained his or her freedom such that a reasonable person would not feel free to walk away. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct.1870, 64 L.Ed.2d 497 (1980). See also State v. Retherford, 93 Ohio App.3d 586, 595, 639 N.E.2d 498 (2d Dist.1994).
{¶ 43} “An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from unreasonable seizure.” Steagald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). See also State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-5683, 984 N.E.2d 1025, ¶ 22 (a suspect “subject to an arrest warrant does not enjoy the full panoply of privacy rights that other individuals enjoy.“).
{¶ 44} In this case, a valid arrest warrant was signed in Miamisburg Municipal Court at 2:32 p.m. on January 16, 2020; there was probable cause to believe that Farra had committed community control violations due to his alleged failure to report to his
Phone “Pings”
{¶ 45} Finally, Farra asserts that the “efforts utilized by the detectives to determine his whereabouts utilizing ‘Ping’ technology constituted additional violations of [his] rights under the Fourth Amendment.” Appellant’s Brief at 11. This argument, however, was not raised in the trial court, and accordingly, it cannot be raised for the first time here on appeal, making it subject to plain error review. Farra, though, does not set forth a plain error argument other than to generally conclude that detectives’ determination of his whereabouts using “ping” technology violated his rights. Not only is that blanket statement an insufficient plain error argument, but it is also factually incorrect. The record indicates that the efforts to locate Farra by way of phone “pings” were unsuccessful, and it was not until Boomershine conducted a “controlled call” with him that investigators discerned his location; it was during that call that Farra revealed he was staying at his grandfather’s house on Drummer Avenue in Dayton.
{¶ 46} Further still, Farra lacks constitutional standing to challenge the validity of the “pings” because the phone was not his but rather Boomershine’s. “Fourth Amendment rights are personal rights which * * * may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A person who is aggrieved only
{¶ 47} The trial court did not err in overruling Farra’s motion to suppress, and as a result, his second assignment of error is overruled.
IV. Identification
{¶ 48} Identification is at the heart of Farra’s third and fourth assignments of error. His third assignment argues that the trial court erred in failing to recognize defects in Deaton’s identification efforts, and in his fourth, he asserts that because the identification was insufficient, the convictions were based on insufficient evidence and were against the manifest weight of the evidence. We will address these arguments together.
{¶ 49} A sufficiency of the evidence argument disputes whether the prosecution has presented adequate evidence on each element of the offense to permit the case to go to the jury or to sustain the verdict as a matter of law. State v. Brock, 2019-Ohio-3116, 140 N.E.3d 1239, ¶ 16 (2d Dist.). Our role when reviewing the sufficiency of the evidence to support a 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),
{¶ 50} When an appellate court reviews whether a conviction is against the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A case should not be reversed as being against the manifest weight of the evidence except “in the exceptional case in which the evidence weighs heavily against the conviction.” (Emphasis added.) Id. “When engaged in this limited reweighing, the appellate court may not merely substitute its view for that of the trier of fact[.]” State v. Thompson, 10th Dist. Franklin No. 16AP-812, 2017-Ohio-8375, ¶ 25.
{¶ 51} “Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 52} In his brief, Farra makes no manifest weight or sufficiency arguments other
{¶ 53} While it is true that there was not a positive identification of Farra as the perpetrator by the victim (and in fact, Deaton failed to pick Farra out of a photo lineup), nevertheless there was a substantial amount of circumstantial evidence that implicated him. Deaton told officers that there were two perpetrators involved in his ordeal: Boomershine, whom he knew, and an unknown male with a S-shaped tattoo on the side of his face. Already knowing the identity of Boomershine and having the unique descriptor of an S-shaped face tattoo for her partner, detectives were able to quickly identify Farra, who was a known associate of hers. Once that initial connection was made, the evidence began to pile up.
{¶ 54} At her arrest, Boomershine was carrying a purse which contained several items related to the crimes, including a document from Xenia Municipal Court with Farra’s name on it. State’s Exhibit 46. She was interviewed by detectives and implicated Farra as her co-conspirator and then agreed to make a “controlled call” to her phone, which she knew was in Farra’s possession. Not only did he answer the phone when she called, but Farra made inculpatory statements during the several minutes-long conversation.
{¶ 55} There was also evidence discovered at the CSX railyard that helped identify
{¶ 56} There was also significant evidence from the Rumpke facility that linked Farra to the crimes. In surveillance video from the night in question, Farra is seen climbing up a post and onto a structural beam, and then later he is seen climbing a cement retaining wall and then hiding there before eventually exiting the building. In addition to the video evidence, Farra‘s DNA was found in multiple locations at the facility, including on the post and concrete wall that he climbed.
{¶ 57} Finally, there was evidence of Farra‘s involvement found on his person when he was arrested. In the search incident to arrest, officers found a Case knife and Deaton‘s flip phone in Farra‘s pants pockets (he was wearing jeans and sweatpants at the time of arrest). Forensic testing then showed Deaton‘s DNA on both Farra‘s jeans and sweatpants.
{¶ 58} Based on the evidence presented at trial, Farra‘s identity was established; his convictions were based on sufficient evidence and were not against the manifest weight of the evidence. His third and fourth assignments of error are overruled.
V. Merger
{¶ 60} When a defendant‘s behavior supports multiple offenses, courts conduct an allied offenses analysis to determine if the charges merge or if the defendant may be convicted of separate crimes. This process is governed by statute,
(A) Where the same conduct by [a] 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.
{¶ 61} “As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
{¶ 62} A defendant bears the burden of establishing that offenses should be merged as allied offenses, and we review the trial court‘s merger ruling de novo. State v. Frazier, 2d Dist. Clark No. 2021-CA-46, 2021-Ohio-4155, ¶ 20. The failure to raise the issue of merger in the trial court forfeits all but plain error, and the error is not reversible unless it affects the outcome of the proceeding and reversal is necessary to correct a manifest injustice. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶ 63} In his brief, Farra claims that the aggravated burglary, aggravated robbery, felonious assault, and kidnapping charges “all correspond to a similar animus” - he wanted to take Deaton‘s property. Appellant‘s Brief at 13. We find this argument unpersuasive, however, because even if his motivation to commit the crimes was the same, the charges would not merge under Ruff because they were committed separately.
{¶ 64} When considering whether offenses were committed separately, we have said that if “one offense was complete before the other offense occurred, the two offenses were committed separately for purposes of
Count 1: Aggravated Burglary (physical harm)
{¶ 65} According to
Count 3: Aggravated Robbery (deadly weapon)
{¶ 66} Aggravated robbery (deadly weapon) is completed when a person, in attempting or committing a theft offense, has a deadly weapon on his or her person, displays it, brandishes it, indicates he or she possesses it, or uses it.
Count 7: Felonious Assault (serious physical harm)
{¶ 67} A person commits felonious assault (serious physical harm) when he or she knowingly causes serious physical harm to another.
Count 8: Felonious Assault (deadly weapon)
{¶ 68} Felonious assault (deadly weapon) is committed when a person knowingly causes or attempts to cause physical harm to another by means of a deadly weapon.
Count 5: Kidnapping (felony or flight)
{¶ 69} Kidnapping (felony or flight) is committed when an assailant, by force, threat, or deception removes another from the place where the other person is found or restrains the other person‘s liberty to facilitate the commission of any felony or flight thereafter.
{¶ 70} Kidnapping and other crimes are not always allied offenses subject to merger because they can involve distinct acts; even when they involve the same conduct, the crimes can have a separate animus. State v. Grable, 2d Dist. Clark No. 2014-CA-52, 2015-Ohio-788, ¶ 13 (March 6, 2015). “A separate animus for kidnapping exists where
{¶ 71} After considering the crimes Farra suggests should have been merged, we conclude that all of them were committed separately, and thus the trial court was correct in determining that they should not be merged under Ruff. Farra‘s fifth assignment of error is overruled.
VI. Sentences
{¶ 72} In Farra‘s sixth, seventh, eighth, and ninth assignments of error, he challenges the lawfulness of his sentences. In his sixth assignment of error, Farra claims that the trial court erred because it did not comply with the purposes and principles of sentencing found in
{¶ 73} When reviewing felony sentences, a court of appeals must apply the standard of review set forth in
{¶ 74} According to the Ohio Supreme Court, we may not independently “weigh the evidence in the record and substitute [our] judgment for that of the trial court concerning the sentence that best reflects compliance with
{¶ 75} A trial court “has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). And while there is a presumption in favor of concurrent sentences (see
(a) The offender committed the offenses while awaiting trial or sentencing, was under a sanction imposed pursuant to
R.C. 2929.16 ,R.C. 2929.17 ,R.C. 2929.18 , or was under post-release control.(b) At least two of the offenses were committed as part of one or more courses of conduct, and the harm was so great that no single prison term adequately reflects the seriousness of the 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.
State v. Brewer, 2017-Ohio-119, 80 N.E.2d 1257, ¶ 9 (2d Dist.), citing
{¶ 76} At the disposition on November 3, 2020, the trial court heard oral statements from Farra, his counsel, the State, and two statements read by the Montgomery County Prosecutor‘s Office Victim Witness Division on behalf of Deaton‘s family. The court also stated that it had considered the sentencing memoranda presented by both parties, written victim impact statements, and the presentence investigation (PSI). The court then merged the appropriate counts, stated that it had considered the purposes and principles of sentencing and the seriousness and recidivism factors of
{¶ 77} Farra argues that the court erred because it did not consider the rehabilitation component of
{¶ 78} Farra‘s consecutive sentences were proper as well. As required, the trial court determined that:
[C]onsecutive service is necessary to protect the public from future crime or to punish the offender, that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger that he poses to the public; at least two of the multiple offenses were committed as part of
one or more courses of conduct; and the harm caused 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; and his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Trial Tr. at 808-803.
{¶ 79} The record before us supports the maximum consecutive sentences and the court‘s finding that they were necessary. Putting aside the heartless and rough treatment of the elderly victim in this case, which would, by itself, likely merit long, consecutive sentences, the record indicates a persistent history of violence from Farra. The PSI established that within a 24-hour period as a juvenile in Kentucky, Farra had murdered two people in incidents that were eerily similar to the case at bar. Both murders involved breaking into the homes of older victims, robbing them, beating them, ransacking the houses for valuables, and then leaving them for dead. After being sentenced as a juvenile for the murders, Farra escaped the juvenile facility and fled to Mississippi where he lived, unaccounted for, for three years until he was arrested again, this time for assaulting a police officer. He was sentenced to 12 years on the escape charge, and when he was released from prison in 2018, he moved to Ohio where he picked up additional convictions, both felony and misdemeanor. In fact, he committed the crimes in this case within hours of being released from the Greene County Jail.
{¶ 80} Because Farra‘s individual sentences were within the statutory ranges and
VII. Consistency in sentencing
{¶ 81} In his tenth assignment of error, Farra contends that the trial court erred in levying a sentence that was not consistent with sentencing imposed for similar crimes committed by similar offenders. He makes no effort, however, to expand on the idea outside of a block quote of
VIII. Cruel and Unusual Punishment
{¶ 83} The
{¶ 84} “As a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.” McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). It is well settled that a sentence does not violate the
{¶ 85} In this case, the record reflects that Farra‘s punishment did not amount to cruel and unusual punishment, despite its lengthy term. Initially, all Farra‘s sentences (a minimum of 11 years for Count 1 - aggravated burglary; 11 years for Count 3 - aggravated robbery; 11 years for Count 5 - kidnapping; 8 years for Count 7 - felonious assault; and 8 years for Count 8 - felonious assault) were within the statutory ranges, albeit at the top. According to the well-settled case law from McDougle and its progeny, Farra‘s sentences, because they were within the statutory limits, did not amount to cruel and unusual punishment.
IX. Cumulative Error
{¶ 87} In his twelfth and final assignment of error, Farra argues that the doctrine of cumulative error should apply, and his convictions should be reversed.
{¶ 88} The cumulative error doctrine states that a conviction will be reversed where “the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). This doctrine, however, only applies where there are “multiple instances of harmless error.” Id. To find cumulative error we must find: (1) that multiple errors were
{¶ 89} After carefully reviewing the record and considering the arguments in Farra‘s brief, we have found only one error on the part of the trial court, and it was a minor one. We certainly do not find a series of errors that would have changed the outcome of the case. The cumulative error doctrine does not apply, and Farra‘s twelfth assignment of error is overruled.
X. Conclusion
{¶ 90} The judgment of the trial court will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Carlo C. McGinnis
Hon. Mary L. Wiseman