STATE OF OHIO, Plаintiff-Appellee, - vs - KEITH MICHAEL FIELDS, Defendant-Appellant.
CASE NO. CA2014-03-025
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/6/2015
[Cite as State v. Fields, 2015-Ohio-1345.]
HENDRICKSON, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2013-CR-0573
Michael P. Kelly, 108 South High Street, Mt. Orab, Ohio 45154, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Keith Michael Fields, appeals from his sentence in the Clermont County Court of Common Pleas for aggravated robbery and felonious assault. For the reasons set forth below, we affirm.
{¶ 2} On September 24, 2013, appellant was indicted on one count of aggravated robbery in violation of
{¶ 3} A jury trial on the charges was held in February 2014. At trial, the state called 11 witnesses whose testimony established that sometime after 1:00 a.m. on March 29, 2013, Ruhstaller took his dog for a walk around his apartment complex in Union Township, Clermont Cоunty, Ohio. While walking his dog, Ruhstaller was accosted by two men dressed in all back who were wearing masks and gloves. One of the men, later identified as Armstrong, was carrying a baseball bat and the other man, later identified as appellant, was carrying a stolen shotgun. Appellant pointed the shotgun at Ruhstaller and demanded money. Armstrong then began beating Ruhstaller with the bat. Ruhstaller attempted to block the bat‘s blows, while telling the men that he did not have any money on him. At some point, Ruhstaller was able to get ahold of the bat, and appellant then struck him with the gun. Ruhstaller continued to state that he did not have any money on him and eventually began to argue with appellant. At some point, appellant “snapped” and asked Armstrong, “Do you want me to blast him? Do you want me to blast him?” Armstrong ran off while mumbling something to appellant, who began messing with the shotgun. Appellant stuck his finger in the trigger and pointed the gun directly at Ruhstaller‘s chest. Ruhstaller was able to grab onto the gun and roll with it, moving the gun‘s position before it was fired. Ruhstaller was
{¶ 4} Ruhstaller‘s wife, Gloria, heard the gun shot inside her home, and she came outside looking for her husband. Gloria called 9-1-1 after learning Ruhstaller had been shot. Officers from the Union Township Police Department arrived on the scene and a canine unit was dispatched to track Armstrong and appellant. Although the canine unit was able to locate a discarded baseball bat and shotgun in a nearby wooded-area that appellant and Armstrong had fled through, the canine unit lost Armstrong and appellant‘s scent and was unable to track the two men any further.
{¶ 5} Weeks later, appellant was apprehended after police officials received a tip from Jason Isbel, an inmate at the Clermont County Jail. Isbel had shared a pod with appellant at the Clermont County Jail following appellant‘s arrest on unrelated charges. While housed in the same pod, appellant told Isbel about the shooting, stating that he shot Ruhstaller “for fun.”
{¶ 6} A friend of appellant‘s, Kyle Deardorff, testified at trial that аppellant had contacted him on the day of the shooting and asked him to try to recover the shotgun that had been abandoned in the woods. During this conversation, appellant told Deardorff that while he and Ruhstaller were fighting over the gun, appellant decided to shoot Ruhstaller “so [Ruhstaller] wouldn‘t get a hold of the weapon.”
{¶ 7} Following the presentation of the state‘s case-in-chief, appellant rested his defense without calling any witnesses or submitting any exhibits. The matter was submitted to the jury, who found appellant guilty on all counts and specifications alleged in the indictment. The trial court scheduled sentencing for February 26, 2014, and informed the parties that it would consider the issue of allied offenses at that time. Prior to the sentencing hearing, both the state and appellant filed briefs addressing whether the offenses should be merged as allied offenses of similar import.
{¶ 8} At the February 26, 2014 sentencing hearing, the state conceded that the two counts for aggravated robbery (counts one and two) merged into one another and that the two counts for felonious assault (counts three and four) merged into one another. The state elected to proceed on counts one and three. Appellant argued that these two counts, including the firearm specifications, were also subject to merger. The trial court disagreed and imposed a separate sentence for count one and count three, as well as separate sentences for each firearm specification. With respect to cоunt one, the trial court imposed an eight-year prison term for aggravated robbery and a three-year mandatory prison term on the firearm specification. The prison terms were ordered to be served consecutively to one another for a total of 11 years on count one. With respect to count three, the trial court imposed an eight-year prison term for felonious assault and a three-year mandatory prison term on the firearm specification. The prison terms were ordered to be served consecutively to one another for a total of 11 years on count three. The court further ordered that the total sentence for count three be served consecutively to the total sentence for count one, for a total prison term of 22 years. This 22-year prison term was then ordered to be served consecutively to sentences previously imposed on appellant in Clermont County Court of Common Pleas Case Nos. 2013-CR-0318 and 2013-CR-0402.
{¶ 9} Appellant timely appeаled his sentence, raising two assignments of error.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY RULING THAT THE TWO OFFENSES ON WHICH DEFENDANT-APPELLANT WAS FOUND GUILTY DID NOT MERGE AND, ALSO, THAT THE GUN SPECS [sic] ATTACHED TO EACH OFFENSE DID NOT MERGE.
{¶ 12} In his first assignment of error, appellant argues that the trial court erred by failing to merge counts one and three. Appellant contends that the aggravated robbery and
Merger of Felonious Assault and Aggravated Robbery
{¶ 13} An aрpellate court applies a de novo standard of review in reviewing a trial court‘s merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28; State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 74.
{¶ 14} Pursuant to
(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 twо 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.
Accordingly,
{¶ 15} The Ohio Supreme Court has recently clarified the test a trial court and a
{¶ 16} In the present case, appellant was convicted of aggravated robbery in violation of
[n]o person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender‘s person or under the offender‘s cоntrol and either display the weapon, brandish it, indicate that the offender possesses it, or use it.
Appellant was also convicted of felonious assault in violation of
{¶ 17} Applying Ruff to the facts of the present case, we find that the two offenses are not allied offenses of similar import as the offenses were committed separately and with separate animus.
{¶ 18} The testimony presented at trial established that the aggravated robbery was complete before the felonious assault occurred. Once appellant pointed the shotgun at Ruhstaller and demanded money, the aggravated robbery was complete. The felonious
Merger of the Firearm Specifications
{¶ 19} Appellant also argues that the trial court erred in sentencing him on multiple firearm specifications because the specifications were related to a single transaction.
{¶ 20} Appellant was convicted of firearm specifications under
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 murder, aggravated robbery, felonious 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 remaining specifications.
(Emphasis added.)
{¶ 21} The record is clear that appellant was convicted of multiple felonies, to wit: aggravated robbery and felonious assault. The trial court was required by
{¶ 22} Accordingly, for the reasons set forth above, we find that the offenses of aggravated robbery and felonious assault are not allied offenses of similar import and that the firearm specifications accompanying each felony offense do not merge pursuant to
{¶ 23} Appellant‘s first assignment of error is overruled.
{¶ 24} Assignment of Error No. 2:
{¶ 25} THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES FOR EACH OF DEFENDANT‘S OFFENSES RESULTING IN AN EXCESSIVE AND DISPROPORTIONATE TERM OF INCARCERATION.
{¶ 26} In his second assignment of error, appellant argues the trial court erred by ordering that his sentence for felonious assault be served consecutively to his sentence for aggravated robbery and further erred by ordering that the three-year mandatory sentences imposed on the gun specifications be run consecutively. He also argues the court erred by ordering that the 22-year sentence imposed in the present case be served consecutively to sentences previously imposed in Clermont County Case Nos. 2013-CR-0318 and 2013-CR-0402. Appellant contends that the record does not support the trial court‘s findings that the harm caused by appellant‘s multiple offenses was so great or unusual that no single prison term adequately reflected the seriousness of his conduct or that consecutive sentences were necessary to protect the public.
{¶ 27} We review the imposed sentence under the stаndard of review set forth in
{¶ 28} Pursuant to
(a) The offender committed one or more of the multiple offenses
while the offender was awаiting 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 rеflects 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.
{¶ 29} “A trial court satisfies the statutory requirement of making the required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria.” Setty, 2014-Ohio-2340 at ¶ 113. In imposing consecutive sentences, the trial court is not required to provide a word-for-word recitation of the language of the statute or articulate reasons supporting its findings. Bonnell, 2014-Ohio-3177 at ¶ 27-29; Setty at ¶ 113. Nevertheless, the record must reflect that the trial court engaged in the required sentencing analysis and made the requisite findings. Id. The court‘s findings must thereafter be incorporated into its sentencing entry. Bonnell at ¶ 37.
{¶ 30} Here, the record reflects that the trial court made the findings required by
THE COURT: The sentences I believe were clearly necessary under 2929.14(C)(4)(a) through (c) to be served consecutively to one another. The sentences are within the proper penalties allowed. It is not the total maximum sentence.
I could have given you 11 years on Count 1. It is undoubtedly, in my mind, necessary to protect the public from future crime and to punish you. And sometimes the aspect of punishment gets overlooked, and, you know, it‘s – the offenses are just so serious
that punishment is necessary to I think fully satisfy the seriоusness of these offenses. I do not believe they‘re disproportionate to the seriousness of your conduct, nor the danger that you pose to the public. I think you are incredibly - - I think you are amoral. I don‘t believe that you have any - - I believe your character is such that you don‘t really care about anybody or anything other than yourself, and you will do whatever you want to do to satisfy your own personal urges or needs irrespective of any harm that may cause to any other person.
And I think given the juvenilе record and within months of becoming an adult you embarked on an incredible crime spree in this county for - - that lasted about two months. And I‘m sure had there not been some superb police work there would be more charges given your - - your conduct.
Again, these are separate offenses. All of these cases involve separate individuals, separate homes, separate victims, separate animuses [sic] on each and every one of these, and your criminal history I think is such that the consecutivе structure is warranted.
The trial court later memorialized these findings within its sentencing entry.
{¶ 31} From the trial court‘s statements at the sentencing hearing and the language utilized in the sentencing entry, it is clear that the trial court complied with the dictates of
{¶ 32} Further, the record demonstrates that appellant has had a long history of criminal conduct, including juvenile adjudications for attempted breaking and entering, burglary, theft, disorderly conduct, and drug abuse as well as felony convictions for burglary, grand theft of a firearm, and grand theft of a motor vehicle. Appellant‘s juvenile detentions, his substance abuse treatment, and the care he received at Child Focus failed to rehabilitate appellant‘s conduct. As the trial court stated, “treatment was offered, treatment was available, alternative lifestyles were clearly available to you, and you simply chose, I believe, not to do that and not to follow a law-abiding life.” Appellant‘s continued criminal conduct resulted in great harm to Ruhstaller. Testimony from trial indicates Ruhstaller underwent multiple surgeries to try and repair his lеg, but he continues to suffer nerve damage. His leg is numb from the knee down, he feels constant pain, and he has lost control of his foot. For the rest of his life, Ruhstaller will be required to wear a brace and use a cane in order to walk.
{¶ 33} We therefore conclude that the information presented at trial and at the sentencing hearing, as well as the information contained within the presentence investigation report, supports the trial court‘s findings under
{¶ 34} We also conclude that the trial court did not err in ordering that appellant‘s mandatory three-year sentences on the two gun specifications be served consecutively. As we have previously recognized, sentences for multiple firearm specifications should be run
While the General Assembly did not include the word “consecutive” in
R.C. 2929.14(B)(1)(g) , it nonetheless carved out an exception to the general rule that a trial court may not impose multiple firearm specifications for crimes committed within a single transaction. The mandatory language of the statute (“thе court shall impose“) also indicates the General Assembly‘s intention that the defendant serve multiple sentences for firearm specifications associated with the enumerated crimes, such as [aggravated robbery] or felonious assault. Had the Legislature intended a per se rule that sentences for firearm specifications must be served concurrent with one another, it could have stated as much. Or, the Legislature could have chosen not to codifyR.C. 2929.14(B)(1)(g) , which serves as an exception to thе rule that multiple firearm specifications must be merged for purposes of sentencing when the predicate offenses were committed as a single criminal transaction.
Id. at ¶ 73. We therefore find that the trial court did not err by imposing consecutive sentences on the gun specifications set forth in counts one and three.
{¶ 35} Accordingly, for the reasons set forth above, we find that the imposition of consecutive sentences was not clearly and convincingly contrary to law. Appellant‘s second assignment of error is overruled.
{¶ 36} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.