STATE OF OHIO v. RAYSHAUN HUDSON
C.A. CASE NO. 2011 CA 100
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
June 7, 2013
2013-Ohio-2351
T.C. NO. 07CR926
Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. No. 0080334, 2600 Far Hills Ave., Suite 315, Dayton, OH 45419
Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{¶ 1} Rayshaun Hudson was convicted after a jury trial in the Clark County Court of
{¶ 2} Hudson contends that he was denied due process when the trial court refused to continuе the trial in order to await a pending competency examination. Hudson also contends that the trial court erred in sentencing him on two firearm specifications and to consecutive terms for the two felonious assault charges. Finally, Hudson maintains that his conviction for tampering with evidence (a weapon) was against the manifest weight of the evidence. For the following reasons, the trial court‘s judgment will be affirmed.
I.
{¶ 3} At around 9:00 a.m. on September 14, 2007, Rayshaun Hudson picked up Stacey Delaney at Delaney‘s home in Trotwood, Ohio. Hudson and Delaney were business and social acquaintances, and Hudson sometimes asked Delaney to ride around with him. Delaney was home quite a bit at that point because he had hurt his back. On this particular day, Hudson intended to drive to Indianapolis to look for his girlfriend, who was pregnant.
{¶ 4} On the way to Indianapolis, Hudson was driving erratically and very fast, despite Delaney‘s request that he slow down. Once they reached Indianapolis, Hudson could not find his girlfriend, so the two men began to drive back home at around 2:00 or 2:30 p.m. On the way back, Hudson continued to drive erratically. Hudson was snorting cocaine and was drinking beer and Wild Irish Rose. When the two men arrived back in Ohio, they ran out of gas. They were assisted by the Clay Township police, who drove Dеlaney to a gas station. Delaney knew that
{¶ 5} When Hudson and Delaney finally arrived back in the Dayton area, they rode around some more while Hudson did his “little transactions.” By this time, it was around 4:00 or 5:00 p.m., but Hudson would not take Delaney home. Consequently, Delaney got out of the truck at a gas station and began walking home. Delaney eventually got back in the truck after Hudson promised to take him home. However, instead of doing so, Hudson drove to Springfield, Ohio.
{¶ 6} When they arrived in Springfield, Hudson stopped in a large parking lot, and the two men got in a dispute. According to Delaney, Hudson was trying to give him money, but Delaney refused it. Apparently, some money blew out of the window. Hudson was also upset because he thought that Delaney had taken his gun. Before they left the parking lot, Hudson shot Delaney in the knee. Hudson was looking at Delaney like he didn‘t recognize him. When Delaney asked Hudson why he had shot him, Hudson would not say why. Hudson said, “I feel like murder.” Hudson then continued to drive around Springfield, pulling into alleys, putting the gun to Delaney‘s side, and talking about the fact that he felt “like murder.” Eventually, Hudson drove the wrong way down a one-way street with a car coming toward them. Delaney reached over for the steеring wheel because he thought they were going to collide with the car. After they passed the car, Hudson shot Delaney again, this time in the calf.
{¶ 7} After additionally shooting at a pedestrian, Hudson stopped at an Advance Auto parking lot. By that point, Delaney had lost a lot of blood. When Hudson pulled up to the back of the parking lot, he took his hand off the pistol and Delaney grabbed the pistol. When Hudson attempted to get the pistol back, it went off. Hudson and Delaney struggled over the pistol, went
{¶ 8} The men in the parking lot called 911, and after a few minutes, Springfield Police Officer Joseph Lewis responded. Delaney had heard the men say that they had called the police. Delaney heard sirens, and when he saw a police car come skidding to a stop about ten to fifteen feet away, he let go of the gun. Delaney then saw that a policeman had his gun out and was yelling, “Halt, halt.” At that point, Hudson stood up with the gun and got back in the truck.
{¶ 9} Officer Lewis testified that as he pulled into the lоt, he could see Hudson standing over Delaney. Lewis also saw that Hudson‘s arm was extended, but he could not see what was in his hand. Lewis then observed Hudson running to a truck while putting something in his waistband. Although Lewis ran up and tried to smash out the driver‘s side window to extract Hudson, Hudson was able to escape. Hudson backed up and sped off through an apartment complex located next to the Advance Auto parking lot. Hudson then proceeded eastbound on High Street at a very high rate of speed.
{¶ 10} By that point, Springfield Police Officer Gregory Garman had arrived in his cruiser. Officers Garman and Lewis pursued Hudson through town while he drove at very high rates of speed, turning his lights off and going left of center several times. At one point, Hudson crossed the median, went westbound in the eastbound lane, turned around, and went through a Wal-Mart parking lot. Although the police used stop sticks, they were not successful, because Hudson drove over the curb to evade them. The officers then lost sight of Hudson for a time.
{¶ 11} Officer Williams saw Hudson throw something over the fence while he was running. Eventually, after Hudson slowed down, Williams and another officer tackled and handcuffed him. No firearm was found either in the truck or on Hudson‘s person. When Williams went back to where Hudson had thrown something over the fence, he found a plastic bag containing a substance that was later identified as crack cocaine.
{¶ 12} Hudson was taken to the hospital because he was very intoxicated or under the influence of some substance and needed medical treatment. When Hudson refused to allow medical staff to pump his stomach, Springfield Police Officer Kevin Hoying assisted the medical staff by holding Hudson‘s head. Hudson eventually slipped free and spit at Hoying.
{¶ 13} In the meantime, Delaney had been transported to the hospital, where he received surgery for his gunshot wounds, including reconstruction of a bone that supported the inside of his knee. Delaney identified Hudson as his assailant, and Hudson‘s hands also tested positive for gunshot residue. No gun was found in the area where Hudson and Delaney had been struggling.
{¶ 14} Hudson was charged with various crimes, including the two felonious assault charges, two counts of tampering with evidence, possession of drugs, possession of criminal tools, harassment with a bodily substance, and failure to comply with a signal or order of a police officer. Firearm specifications were also included. After a jury trial, Hudson was found guilty on all charges, and he was sentenced to a total of 42 years in prison. Hudson appeals from his
II.
{¶ 15} Hudson‘s First Assignment of Error states that:
APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT DENIED MR. HUDSON A CONTINUANCE OF THE TRIAL IN ORDER TO AWAIT A PENDING COMPETENCY EVALUATION.
{¶ 16} In his first assignment of error, Hudson contends that the trial court abused its discretion by denying his request for a continuance of the trial in order to await a second pending competency evaluation that was ordered in a contemporaneous case in Montgomery County, Ohio.1
{¶ 17} “The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion.” (Citations omitted.) State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). In Unger, the Supreme Court of Ohio noted that when evaluating requests for continuances, courts should consider the following factors:
[T]he length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is
dilatory, purposeful, or contrived; whether the defendant contributed to the circumstаnce which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.
(Citation omitted.) Id. at 67-68.
{¶ 18} In the case before us, Hudson was indicted in September 2007, and trial was originally set for November 2007. The trial was continued at the request of the State and was rescheduled for January 2008. It was then continued several times at the request of the defense, including one continuance that was based on the court‘s having granted defense counsel‘s motion to withdraw.
{¶ 19} In April 2008, the trial court appointed new counsel for Hudson and set a trial date of June 4, 2008. That trial date was also continued, becаuse Hudson failed to appear. The court learned at that time that Hudson was in the hospital after having crashed his vehicle while fleeing from authorities in Montgomery County. At that point, the court ordered Hudson‘s bond forfeited and issued a warrant for his arrest.
{¶ 20} The case was subsequently set for a jury trial on September 9, 2008. However, on August 29, 2008, Hudson‘s counsel filed a motion asking the court to order a competency evaluation and examination. Defense counsel expressed concern that Hudson might be of diminished mental capacity and could also have mental health issues that would affect his ability to assist in his own defense. The trial сourt ordered a competency examination by the Forensic Psychiatry Center for Western Ohio, and scheduled a competency hearing for late October 2008.
{¶ 21} At the competency hearing, the State stipulated to the findings in the report, and the defense stipulated only to the fact that if Dr. Thomas Martin appeared, he would testify as to
{¶ 22} On October 27, 2008, the court filed an entry reflecting its findings about Hudson‘s competency. The court also set a trial date of December 15, 2008. Subsequently, on December 9, 2008, Hudson filed a motion to continue the trial. Hudson noted that he had made a request in Montgomery County for a second competency evaluation and had been granted permission for a second opinion on the condition that he pay for it. Hudson further stated that his family had provided money for the evaluation, which had been scheduled with a doсtor from Forensic Psychiatry of Southwestern Ohio. The trial court overruled Hudson‘s motion on December 11, 2008, and the trial went forward as scheduled.
{¶ 23} Hudson‘s counsel also raised the competency issue on the first day of trial. Defense counsel noted that Hudson had been examined on the preceding Saturday (December 13, 2008), and that the second competency report would be forthcoming. Defense counsel once more expressed concern about Hudson‘s competency. However, the trial court again overruled the motion. In particular, the court stressed the history of the case, which included Hudson‘s continuеd problems with any attorneys who represented him, as well as a suggestion in the original competency report that Hudson was malingering or purposely trying to cause problems in the case.
{¶ 24} The above facts indicate that the trial court did not act unreasonably, arbitrarily,
{¶ 25} Furthermore, the trial court did allow a competency evaluation, and Hudson failed to challenge either the examiner‘s neutrality or the specific content of the report.2 Hudson also did not argue that the examination failed to comply with requirements for competency evaluations found in
{¶ 26} The trial court did not abuse its discretion in refusing to grant a continuance. Hudson‘s first assignment of error is overruled.
III.
{¶ 27} Hudson‘s second assignment of error states:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO TWO FIREARM SPECIFICATIONS.
{¶ 28} In his second assignment of error, Hudson contends that the trial court erred in sentencing him for firearm specifications in connection with each felonious assault charge. Hudson argues that both charges arose from the same transaction, i.e., Hudson‘s restraint of
{¶ 29} At sentencing, the trial court imposed a sentence of eight years for each felonious assault charge, plus three years for the firearm specification on each charge, with the sentences to run consecutively. Thus, the sentences for the felonious assaults totaled 16 years, plus six years total for thе firearm specifications, resulting in a sentence of 22 years for these charges.
{¶ 30} When the trial court imposed separate sentences for the firearm specifications, it stated that:
Before I proceed with the disposition, I do want the record to be clear that the Court, in hearing the testimony of the victim, Mr. Delaney, the Court is of the impression, based upon the evidence that was presented, that the felonious assault occurred at separate times. Or at least there was a significant period of time in between those two felonious assaults. And, therefore, the Court‘s position, based on the evidencе, is that the firearm specifications for those two felonious assaults would not merge.
{¶ 31} At the time Hudson was sentenced in December 2008,
{¶ 33} In State v. Walker, 2d Dist. Montgomery No. 17678, 2000 WL 873222 (June 30, 2000), we concluded that even though the defendant‘s actions shared a сommon objective of escaping the police, they were not part of the same act or transaction, because they “clearly occurred at different times and in different places.” Id. at *13. The defendant in Walker had a firearm in his possession while fleeing from police who were pursing him on Interstate 75 from Dayton toward Cincinnati. After the defendant arrived in downtown Cincinnati, he caused a traffic accident and seriously injured another motorist, while still in possession of the firearm. We concluded that the trial court had correctly refused to merge the firearm specifications for these charges against the defendant. Id. In this regard, we observed that “[t]he mere fact that [the offenses] share a common objective, escape from the police, is not sufficient to classify them as part of the same act or transaction.” Id.
{¶ 35} In contrast, in State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747, multiple gunshots were fired inside a bar in rapid succession. The case also involved multiple victims and resulted in felonious assault and murder convictions. We concluded that these actions were part of a single transaction for purposes of
{¶ 36} In the present case, Hudson shot Delaney in the knee when he (Hudson) appeared to be upset over the possibility that Delaney had taken his pistol and had refused money. Hudson then drove around Springfield for quite some time before shooting Delaney a second time. The latter shooting appears to have been motivated by Hudson‘s anger over the fact that Delaney grabbed the steering wheel when it looked as if they were going to collide with another car. These two incidents did not involve the same objective, and they occurred at different times and in different locations, as with the incidents in Walker and Twitty. Accordingly, the trial court did not err by refusing to merge the firearm specifications for the two assault charges.
{¶ 37} Hudson‘s second assignment of error is overruled.
{¶ 38} Hudson‘s third assignment of error states:
THE CONVICTION OF TAMPERING WITH EVIDENCE, NAMELY A FIREARM[,] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 39} In his third assignment of error, Hudson contends that his conviction for tampering with evidence (a weapon) was against the manifest weight of the evidence, because the gun was never found and one cannot infer, based on the facts, that Hudson intentionally threw it away during the chase.
{¶ 40} “[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 believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“‘manifest weight of the evidence’ refers to a greater amount of credible evidence and relates to persuasion“). When evaluating whether a conviction is contrary to the manifest weight of the evidencе, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “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), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 41} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses.
{¶ 42} Hudson was charged in Count Three with tampering with evidence (a weapon), in violation of
{¶ 43} Delaney was shot twice, and he identified Hudson as the shooter. Delaney testified that when the police arrived at the Advance Auto parking lot, Hudson took the gun and got into his truck. Officer Lewis, who had arrived on the scene, also observed Hudson with his arm extended. The officer then saw Hudson putting something in his waistband. The police did not recover a weapon from the parking lot where Delaney and Hudson struggled over the gun. During the pursuit, the police lost sight of Hudson and the vehicle for a time, and later found him standing on a street corner. The police did not recover a weapon from Hudson, the truck, or anywhere. There is no question that the Appellant used a firearm in these felonies and that he apparently possessed it when he drove away from the parking lot; further, he did not have the weapon when he was arrested later after a foot chase.
{¶ 44} However, the “inability of law enforcement to find the gun used in a shooting by
{¶ 45} In the view of a majority of this court, Hudson‘s conviction for tampering with evidence (weapon) was against the manifest weight of the evidence. The jury may well have concluded that the defendant disposed of the gun, but the manifest weight of the evidence did not support a finding that Hudson was guilty of tampering with evidence (weapon).
{¶ 46} Nevertheless, given that Hudson was convicted by a jury, we cannot reverse his conviction for tampering with evidence (weapon).
{¶ 47} Hudson‘s third assignment of error is overruled.
V.
{¶ 48} Hudson‘s fourth assignment of error states:
{¶ 49} In his fourth assignment of error, Hudson contends that the trial court erred in sentencing him to consecutive sentences for the two counts of felonious assault. In this regard, Hudson contends that the two offenses are allied offenses of similar import and were committed with the same animus.
{¶ 50}
(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.
{¶ 51} “When determining whether two offenses are allied offenses of similar import subject to merger under
Under
R.C. 2941.25 , the court must determine prior to sentencing whetherthe offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” * * *
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.
(Citations and quotations omitted.) Johnson at ¶ 47–51.
{¶ 52} A defendant who argues on appeal that the trial court erred by not merging multiple offenses bears the burden to show that the offenses are allied pursuant to
{¶ 54} We therefore focus on whether the two shootings by Hudson constituted a single act with a single animus. The Ohio Supreme Court has interpreted the term “animus” to mean “purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979); see also, e.g., State v. Beverly, 2d Dist. Clark No. 2011 CA 64, 2013-Ohio-1365, ¶ 42.
“Like all mental states, animus is often difficult tо prove directly, but must be inferred from the surrounding circumstances. * * * Where an individual‘s immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori, commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.” Logan at 131. “If the defendant acted with the same purpose, intent, or motive in both instances, the animus is identical for both offenses.” State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.
{¶ 55} Under the facts of this case, Hudson‘s two felonious assaults were committed separately and he had a separate animus for each shooting. Although both shootings occurred while Hudson and Delaney were together in a vehicle, there was a significant delay between the first and second shooting. The record reflects that Hudson‘s “immediate motive” for the first shooting was anger over his belief that Delaney may have taken his gun and refused money.
{¶ 56} Hudson‘s fourth assignment of error is overruled.
VI. Conclusion
{¶ 57} The trial court‘s judgment will be affirmed.
DONOVAN, J., concurs.
WELBAUM, J., concurring:
{¶ 58} I сoncur with most of the majority opinion and affirmance, but very respectfully disagree with its conclusion that Hudson‘s Third Assignment of Error, but for a provision of the Ohio Constitution, should otherwise be sustained. I believe Hudson‘s conviction for Tampering With Evidence was not against the manifest weight of the evidence. As noted by the majority, a split decision by a court of appeals reversing a conviction resulting from a jury trial on the manifest weight of the evidence is unconstitutional pursuant to
{¶ 59} I very respectfully disagree with the majority on this issue for the following reasons. As we stated in State v. Arthur Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016,
“When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact ‘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. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being against the manifest weight of the evidence ‘only in the exceptionаl case in which the evidence weighs heavily against the conviction.‘” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 60} The evidence shows that Hudson disposed of the firearm as he fled during a high speed chase from police after he had twice shot and threatened Delaney. The pistol was never found. Nonetheless, the jury may have reasonably inferred that Hudson intentionally threw it away during his flight in violation of the statute, to wit:
No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or avаilability as evidence in such proceeding or
investigation[.] R.C. 2921.12(A)(1) .
{¶ 61} The record contains no basis upon which to conclude that the jury clearly lost its way and created a manifest miscarriage of justice. Instead, the evidence in the record indicates that Hudson possessed and disposed of the firearm in violation of the statute.
{¶ 62} According to Delaney, when the police arrived, he (Delaney) let go of the gun, and Hudson took it. The police officer who arrived on the scene also observed Hudson with his arm extended. The officer then saw Hudson putting something in his waistband. In addition, the police did not recover a weapon from the рarking lot where Delaney and Hudson struggled over the gun.
{¶ 63} During the pursuit, the police lost sight of Hudson‘s vehicle for a time, and then later found him standing on a street corner. The police did not recover a weapon from Hudson or from the truck. A reasonable inference from the facts is that Hudson disposed of the weapon at some point during the chase for the purpose prohibited by the statute, probably when the police lost sight of the vehicle. As a result, I believe the conviction for Tampering with Evidence is not against the manifest weight of the evidence.
{¶ 64} I would overrule Hudson‘s Third Assignment of Error on its merits. For these reasons, I very resрectfully disagree with the majority. As a result of the reasoning expressed in this opinion, the Ohio Constitution requires that this conviction be affirmed.
Copies mailed to:
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Adam James Stout
Hon. Douglas M. Rastatter