STATE OF OHIO v. ANDRE HICKS
No. 95169
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 9, 2011
[Cite as State v. Hicks, 2011-Ohio-2780.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-533926
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEYS FOR APPELLANT
BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Robert Botnick Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Andre Hicks (“Hicks”) appeals his convictions in Cuyahoga County Common Pleas Court Case No. CR-533926 of one count of kidnapping and one count оf felonious assault with a deadly weapon. The jury acquitted Hicks of several other charges. The trial court sentenced Hicks to four years on each count, to be served concurrently. For
{¶ 2} Hicks and an individual known as “D” approached Demetrius Williams (“Williаms”) in the second-floor room of a mutual friend’s house. Hicks and “D” accused Williams of stealing drugs. Moments later, a masked man, later identified as Hicks’s co-defendant Brandon Blackman (“Blackman”), entered the room brandishing a chrome revolver and began pistol-whipping Williams. According to Williams, Hicks and “D” attacked another individual in the room who was able to escape. After the other’s escape, Hicks and “D” turned their attention toward Williams. During the attack, Williams attempted to escape the room but was prevented by Hicks and “D.” Williams eventually escaped, fled the house, and ran home.
{¶ 3} After the joint trial of Hicks and Blackman, the jury returned a guilty verdict against Hicks as to two of seven counts: kidnapping and felonious assault with a deadly weapon. Blackman was found guilty of felonious assault, kidnapping, аnd a firearm specification. The jury acquitted Hicks of aggravated robbery and other felonious assault charges, and all firearm specifications. The trial court sentenced Hicks and the co-defendant Blackman simultaneously and sentenced Hicks to four years for each guilty count and imposed the terms concurrently. When announcing Blackman’s sentence to the firearm specification and kidnapping and felonious assault charges, the court stated the latter two charges were not allied offenses. The trial court further found the kidnapping was committed with a separate
{¶ 4} Hicks raises two assignments of error. His first assignment of error is as follows: “The trial court erred at sentencing by failing to merge the kidnapping count with the felonious assault count and by imposing concurrent sentences on both.” Hicks‘s first assignment of error is sustained.
{¶ 5} The record reflects that Hicks never raised the issue of merger in the trial сourt and therefore has waived all but plain error on appeal. State v. Russell, Cuyahoga App. No. 83699, 2004-Ohio-5031, citing State v. Smith, 80 Ohio St.3d 89, 118, 1997-Ohio-355, 684 N.E.2d 668. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
“(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 defendаnt’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.”
{¶ 7} The Ohio Supreme Court’s latest incarnation of analysis in effectuating
{¶ 8} The first inquiry focuses on whether it is possible to commit multiple offenses with the same conduct. Johnson, 128 Ohio St.3d 153, at ¶ 48. If the offenses “correspond to such a degree that the conduct of the defendant constituting commission of one offеnse constitutes commission of the other, then the offenses are of similar import.” (Emphasis added.) Id. It is not necessary that both crimes are always committed by the same conduct,
{¶ 9} The first tier of this analysis is fairly straightforward. Prior to Johnson, courts determined whether offenses were allied based on an abstract inquiry into the statutory еlements of the offenses. The plurality in Johnson abandoned this approach. Id. at ¶ 47. We note, however, Justice O‘Connor maintained in her concurring opinion that Rance was overruled “inasmuch as it requires a comparison of the elements of the offenses solely in the abstract.” (Emphasis added.) Id. at ¶ 68. While abstract comparisons are no longer required, courts must still use the legal elements to provide a context for examining the offender‘s conduct in relation to the offenses. In our view, thе new Johnson test did not completely eliminate consideration of the legal elements; it simply made the offender‘s conduct the lynchpin of the analysis. Thus, the reviewing court uses the elements of the offenses as guideposts to measure the defendant‘s conduct as it relates to the offenses in determining whether multiple offenses could have been committed by the same conduct.
{¶ 10} In abandoning the use of аbstract comparisons, prior judicial determinations that offenses are allied may be helpful, but are no longer dispositive. Contra State v. McCullough, Fayette App. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992, ¶ 17 (relying on prior determinations that two offenses were allied to satisfy the first tier of the Johnson test). The same combinations of offenses may not always be allied for the purposes of the individual case. Post Johnson, courts must undertake a case-by-case inquiry as to
{¶ 11} The second tier of the Johnson test requires the court to look at the “state of mind” of the offender to determine if the offender acted with a seрarate animus or purpose in committing two or more offenses. This is the more difficult analysis in the Johnson test, notably absent from which is any tool, method, or test for determining when someone acts with a separate purpose or animus or, for that matter, any framework to aid in this determination. For this purpose, we rely on the following guidelines to analyze whether kidnapping and an offense of similar import are сommitted with separate animus:
“(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offensе, there exists a separate animus as to each offense sufficient to support separate convictions;
“(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.”
State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, syllabus. The focus in Logan is on the characteristics of the restraint. If the restraint or movement is incidental to the
{¶ 12} Succinctly stated, “[i]n Logan and subsequent cases, prolonged restraint, secretive confinement, and substantial movement apart from that involved in the other crime were factors necessаry to establish a separate animus as to each offense sufficient to support separate convictions.” (Internal citations omitted.) State v. Lynch, 98 Ohio St.3d 514, 536, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 134. According to Logan and its progeny, the conduct of the offender is analytically tied to the offender‘s state of mind. Logan, 60 Ohio St.2d 126. In other words, we look to the offender‘s conduct to determine his state of mind. In Logan, the Ohio Supreme Court held that the offender‘s conduct in forcing the victim into аn alley, around a corner, and down a flight of stairs before raping her at knife point was committed without a separate animus. The court found that the movement was slight, the detention brief, and the victim was released immediately after the commission of the underlying crime, compelling the court‘s conclusion that the kidnapping was incidental to the rape. Id. at 135.
{¶ 13} In addition to the focus on the charactеristics of the restraint, a separate animus exists if the asportation or restraint of the victim subjects him to a substantial increase in risk of harm separate from the underlying crime. State v. Johnson, 88 Ohio St.3d 95, 113, 2000-Ohio-276, 723 N.E.2d 1054; Logan, 60 Ohio St.2d at 135. For example, in State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 140-143, the defendant tied
{¶ 14} If the restraint is not incidental to the underlying offense or exposes the victim to a substantial increase in harm, then the defendant‘s conduct is deemed to have been committed with a separate animus. Where a court finds that the offenses were committed separately or with a separate animus for each offense, the result is that the allied offenses will not merge and the defendant can be sentenced on each.1
{¶ 15} Turning to the facts of the current case, Hicks was convicted of kidnapping, in violation of
{¶ 16} The offenses in the current case were based on Hiсks’s action in attacking and/or holding the victim while another offender attacked the victim. When the victim tried to flee, Hicks pulled him back into the room to continue the attack. The three attackers and the victim tussled to the point that all fell down a nearby staircase. Once the victim finally escaped, the attack stopped. Hicks’s conduct in restraining the victim inside the room and restraining him while he was beaten satisfies the elements of both felonious assault and kidnapping. More important, the state relied on that same conduct to prove both crimes. The offenses are allied offenses of similar import under the first portion of the Johnson test.
{¶ 17} We now turn to the question of whether Hicks’s conduct was separate and distinct between the allied offenses or whether it was committed with a separate animus under the second tier of the Johnson test.
{¶ 18} The state makes a compelling argument that a separate animus existed the moment Hicks pulled the victim back into the room to continue the vicious assault. The problem is that the term “animus,” in relation to kidnapping, does not simply end with an assessment of the mental intent of the defendant. In kidnapping scenarios, there is an additional “proximate conduct” analysis, outlined under Logan, that requires us to consider
{¶ 19} The restraint here was incidental to the commission of the underlying felonious assault. In other words, the restraint was proximate to the assault and was not remote or separate to a degree thаt would warrant separate punishments. While the restraint of the victim prolonged the attack, this serves to strengthen the argument for a harsher penalty, not to create a second crime. Employing the Logan guidelines, we find as follows: this was an arm’s-length attack committed with a fist or handheld, blunt force weapon; the victim was not a willing combatant and, therefore, either some restraint was necessary to cоmplete the assault, or the assault itself caused the restraint; the restraint only lasted the duration of the attack, a
{¶ 20} As in Logan, the restraint of Williams carried no further significance beyond facilitating the assault. The detention was brief, the movement slight, and the victim was released or escaped thereby ending the assault. The illustration offered in Logan is instructive:
“Where an individual’s immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori [sic], commit another, then he may well possess but a single animus, and in that event may be conviсted of only one crime. For example, when a person commits the crime of robbery, he must, by the very nature of the crime, restrain the victim for a sufficient amount of time to complete the robbery. Under our statutes, he simultaneously commits the offense of kidnapping (
R.C. 2905.01(A)(2) [)] by forcibly restraining the victim to facilitate the commission of a felony. In that instance, without more, there exists a single animus, andR.C. 2941.25 prohibits convictions for both offenses.”
Logan, 60 Ohio St.2d at 131-132. We see no reason to distinguish felonious assault and kidnapping under the specific facts of this case from the analysis given for aggravated robbery and kidnapping in Logan. Hicks’s stated goal was to assault the victim. No other evidence was presented to substantiate a separate animus, and the trial court did not specify its reasons for such a finding. Although the court mentioned a “separate length of time,” it is not clear from the record what length of time is being referenced.
{¶ 22} As the state correctly notes, if a court finds reversible error in the imposition of multiple punishments for allied offenses, we must reverse the sentence and remand for a new sentencing hearing at which the state will elect which allied offense it will pursue against the defendant. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25. We vacate the sentences on both the kidnapping and felonious assault counts. We remand for a new sentencing hearing consistent with and limited to this opinion.
{¶ 24} The failure of the court to orally notify a defendant at the sentencing hearing that it is imposing court costs on him is error. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22. A defendant must be present at every stage of his trial, including sentencing.
{¶ 25} Hicks did not receive the oppоrtunity to seek waiver of the court costs. The trial court imposed costs in the journal entry without addressing the matter at the sentencing hearing. Hicks’s second assignment of error is sustained. We remand the case to the trial court to allow Hicks the option to move the court for a waiver of the payment of court costs, which if done, shall
Reversed and vacated. We remand the matter to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleаs court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
LARRY A. JONES, J., CONCURS IN JUDGMENT ONLY