State of Ohio v. Malcolm D. Fisher
Court of Appeals No. L-22-1150
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
June 23, 2023
2023-Ohio-2088
Trial Court No. CR0202103061
State of Ohio Appellee v. Malcolm D. Fisher Appellant
DECISION AND JUDGMENT
Decided: June 23, 2023
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
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ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Malcolm Fisher, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to an aggregate prison term of 55 years to life after appellant pled guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to aggravated murder, felonious assault, aggravated burglary, having weapons while under disability, and several attendant firearms specifications.
A. Facts and Procedural Background
{¶ 2} On December 22, 2021, appellant was indicted on one count of aggravated murder in violation of
{¶ 3} On January 12, 2022, appellant appeared before the trial court for arraignment, at which time he entered a plea of not guilty to the aforementioned charges. The following day, appellant‘s trial counsel filed a written plea of not guilty by reason of insanity and moved the trial court for a competency examination.
{¶ 5} Thereafter, the matter proceeded through plea negotiations. Following successful plea negotiations, appellant appeared before the trial court for a change of plea hearing on May 24, 2022. At the outset of the hearing, the state articulated a plea agreement it reached with appellant, under which appellant agreed to withdraw his prior plea of not guilty and enter a plea of guilty pursuant to Alford, supra, to Counts 1, 4, 5, and 7, with firearms specifications attached to Counts 1, 4, and 5. In exchange, the state agreed to dismiss the remaining counts and firearms specifications contained in the indictment, and the parties agreed that appellant would not be sentenced to life without the possibility of parole. The state informed the trial court that it “makes no argument as to merger at this point; however, [the state] does not believe as an operation of law that these charges are subjected to merger.”
{¶ 6} Prior to accepting appellant‘s Alford plea, the trial court engaged appellant in a thorough Crim.R. 11 colloquy. During the colloquy, the trial court informed appellant that “some of these sentences may merge. I don‘t know that at this point. The State argues that they don‘t.”
The State would have shown the following had this case proceeded to trial: The State would have shown that this defendant went to 3165 Hazleton, Oregon, Ohio, 43616, for the purpose of murdering the victim in this case, Johanna Crawford, and kidnapping his biological daughter, [A.F.], who was nine years old at the time.
The State would have shown that on December 16th of 2021, this defendant told at least three people that he was going to that house to murder both Johanna Crawford, as well as her husband, Knute. Knute was not home at the time. He went to the house with a 12-gauge shotgun, shot the lock off the front door, entered the premises without permission, located Johanna, and shot her in the head with a shotgun, killing her immediately.
* * * He went there with that sole purpose and he did it. Thankfully Knute was not home. His daughter, who he did not have custody of at the time, he had custody with Johanna and Knute, who are her grandparents, was upstairs sleeping at the time.
Defendant, after breaking in, shooting his way into the house really, and cornering and executing Johanna Crawford, went upstairs, took his daughter, again, who he did not have custody of, and fled the scene. He did
so – it was about almost 11:00 at night. He woke her up from sleep, took her out of the house, drove her to Toledo to a friend‘s house. That friend then informed the police this defendant was there, and thankfully the police showed up, placed the defendant in custody without further incident.
{¶ 8} After the state finished its recitation of the predicate facts, the trial court accepted appellant‘s plea, found him guilty of all offenses and firearms specifications to which he pled, and referred the matter to the probation department for preparation of a presentence investigation report.
{¶ 9} On June 8, 2022, appellant‘s sentencing hearing was held. At the sentencing hearing, the trial court asked the parties to address the issue of merger of appellant‘s offenses. The state asserted that the offenses of aggravated murder, felonious assault, aggravated burglary, and having weapons while under disability were not allied offenses of similar import and argued that only the firearms specifications should merge. Thereafter, appellant‘s trial counsel argued that
both the felonious assault and the aggravated burglary should merge in this case as is laid out, I think, on Page 4 of the presentence investigation report. My client‘s conduct in this matter was singular in its animus of what he was intending to do. He had actually called several people before this – the events of that day took place. * * * [M]y client clearly left with a singular intent when he went into the house. It was not to steal anything or to
commit any other felony other than the aggravated murder, which he did. We feel that the only one that should (sic) merge is the having weapons while under disability, and we would ask that the Court so merge those counts.
{¶ 10} In response, the state argued that the offenses were committed separately. Specifically, the state asserted that the aggravated burglary was committed when appellant “grabbed [A.F.‘s] arm and pulled her out of bed and into his car.” Further, the state provided that the felonious assault charge was based upon “multiple defects in the house” and “a circumstantial finding that the victim in the house was shot at and moved to the location where she was finally deceased.”
{¶ 11} Upon consideration of the parties’ arguments, the trial court summarily decided that only the firearms specifications were subject to merger in this case. Thereafter, the trial court heard a statement in mitigation from appellant‘s trial counsel1 as well as a letter from Knute. Ultimately, the court ordered appellant to serve prison terms of 30 years to life as to Count 1, 8 to 12 years as to Count 4, 11 to 16 1/2 years as to Count 5, and 36 months as to Count 7. The trial court then merged all of the firearm specifications and imposed a mandatory and consecutive three-year prison term as to the firearm specification pursuant to
{¶ 13} While not addressing the matter at the sentencing hearing, the trial court, in its sentencing entry, also found that appellant had the ability to pay for the costs of confinement, supervision, and prosecution. Consequently, the trial court imposed such costs upon appellant in its entry.
{¶ 14} Following the sentencing hearing, on June 28, 2022, appellant filed his timely notice of appeal.
B. Assignments of Error
{¶ 15} On appeal, appellant assigns the following errors for our review:
The trial court committed plain error by failing to merge Fisher‘s sentences on the basis of allied offenses of similar import. - The court improperly assigned costs of confinement and supervision in the judgment entry of sentencing, but not at the sentencing hearing, and without regard to appellant‘s ability to pay.
II. Analysis
A. Allied Offenses of Similar Import
{¶ 16} In his first assignment of error, appellant argues that the offenses of aggravated murder, felonious assault, and aggravated burglary were allied offenses of similar import and thus the trial court erred in failing to merge them at sentencing.
{¶ 17} Appellant‘s argument implicates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, made applicable to the state through the Fourteenth Amendment. It provides several protections, including the protection against multiple punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Ohio General Assembly has codified this protection by enacting
(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.
{¶ 18} In Ruff, the Ohio Supreme Court set forth the following three-part test to determine whether a defendant can be convicted of multiple offenses:
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 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? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶ 19} “The defendant bears the burden of establishing that
{¶ 20} Appellant argues on appeal, as he did before the trial court, that his convictions for aggravated murder, felonious assault, and aggravated burglary should have merged as allied offenses of similar import because all of the offenses were committed simultaneously when he shot a single victim, Johanna, and was motivated by a single animus, namely the intention to murder Johanna. Upon review, we find that these offenses were committed separately, and thus are not subject to merger under
{¶ 21} Offenses are committed separately within the meaning of
{¶ 22} Given the fact that this appeal arises from an Alford plea, and in light of appellant‘s failure to request a bill of particulars or conduct extensive discovery prior to entering his plea, the factual predicate for the offenses to which appellant pled is not well-developed in the record before us on appeal. A defendant seeking to establish that
{¶ 23} In the present case, appellant was convicted of felonious assault in violation of
{¶ 24} One who shoots into a residence known to be occupied, and actually occupied, may be convicted of felonious assault irrespective of whether the shot strikes the occupants therein. See State v. Elko, 8th Dist. Cuyahoga No. 83641, 2004-Ohio-5209, ¶ 54, abrogated in part by State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498 (“Firing a pistol into a window, without knowing who could be behind it, satisfies a knowing attempt to cause physical harm.“); State v. Gowdy, 6th Dist. Erie No. E-06-071, 2009-Ohio-385, ¶ 28-29 (applying Elko and affirming two felonious assault
{¶ 25} Once inside the residence, appellant located Johanna and executed her by shooting her in the head with his shotgun. There is no evidence in the record that Johanna was struck and killed by appellant‘s shots into the home through the door. Instead, it was appellant‘s subsequent shot to Johanna‘s head that gave rise to the state‘s aggravated murder charge under
{¶ 26} After executing Johanna, appellant made his way upstairs and located A.F. Appellant then removed A.F. from her bedroom and placed her inside his vehicle despite having no legal custody of her at the time. According to the state, appellant‘s removal of A.F. from the home constituted aggravated burglary under
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another.
{¶ 27} Appellant rejects the state‘s assertion that his removal of A.F. from the home constituted aggravated burglary, insisting that the record contains no evidence that such removal physically harmed A.F. in any way. “Physical harm to persons” is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{¶ 28} The record is devoid of any evidence as to the specific manner in which appellant removed A.F. from the home. However, the state, at sentencing, argued that A.F. suffered physical harm when appellant “grabbed [her] arm and pulled her out of bed and into his car.” This assertion is plausible from the record before us. Indeed, A.F. was sleeping in her bedroom at the time of the shooting, and it could thus be inferred that appellant had to apply some force in waking her and getting her out of her bed. Such force, however slight, could have physiologically impaired A.F. by restricting her movement, and thus constituted physical harm. See City of Fostoria v. Pruitt, 3d Dist. Seneca No. 13-78-33, 1979 WL 207858, *2 (Apr. 3, 1979) (finding that the defendant‘s “attempt to encompass the patrolman‘s arms constituted a physiological impairment being an attempt to limit the scope of arm movement and also constituted physical harm“).
{¶ 29} Moreover, we reiterate that the burden of demonstrating entitlement to merger is upon appellant, not the state. Smith, supra, 2023-Ohio-866, --- N.E.3d ----, at ¶ 10. Here, appellant did not seek to introduce any evidence, and did not make any representations to the court, as to how he removed A.F. from the home. Thus, we are left
{¶ 30} In sum, we find that the offenses of felonious assault, aggravated murder, and aggravated burglary were committed separately. Appellant committed felonious assault by shooting a hole through the front door of Johanna‘s home. He then committed aggravated murder by shooting Johanna in the head once inside the residence. Finally, appellant committed aggravated burglary when he removed A.F. from the home. Since these offenses were committed separately, they are not allied offenses of similar import.
{¶ 31} Accordingly, we find appellant‘s first assignment of error is not well-taken.
{¶ 32} In appellant‘s second assignment of error, he argues that the trial court erred in ordering him to pay the costs of confinement and supervision.
{¶ 33} “Our standard of review on this issue is whether the imposition of costs was contrary to law.” State v. Ivey, 6th Dist. Lucas No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing
III. Conclusion
{¶ 35} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas is affirmed. The costs of this appeal are assessed to appellant under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J.
JUDGE
Myron C. Duhart, P.J.
JUDGE
Charles E. Sulek, J.
CONCUR.
JUDGE
State of Ohio v. Malcolm D. Fisher L-22-1150
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/.