STATE OF OHIO, PLAINTIFF-APPELLEE, v. CLAY A. JUNOD, DEFENDANT-APPELLANT.
CASE NO. 10-18-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
March 4, 2019
[Cite as State v. Junod , 2019-Ohio-743.]
Trial Court No. 17-CRM-033
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: March 4, 2019
APPEARANCES:
Patrick T. Clark for Appellant
Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
{¶1} Defendant-Appellant, Clay A. Junod (“Junod“), appeals the March 19, 2018 judgment of the Mercer County Court of Common Pleas, Criminal Division, journalizing his conviction by a jury on one count of first degree felony Aggravated Robbery, one count of second degree felony Kidnapping, one count of third degree felony Abduction, and one count of first degree misdemeanor Petty Theft. The trial court also found that Junod is a Repeat Violent Offender with respect to the Aggravated Robbery and Kidnapping counts, and sentenced him to an aggregate prison term of twenty-three years.
{¶2} On appeal, Junod argues that his trial counsel provided him with ineffective assistance; that the trial court erred when it overruled his motion for a mistrial; that the prosecutor committed misconduct that prejudiced his case; that his Aggravated Robbery conviction is against the manifest weight of the evidence; that the trial court erred when it found that his Aggravated Robbery and Kidnapping convictions did not merge as allied offenses; and that the trial court erred in imposing the court-appointed attorney‘s fees without first finding that he had the ability to pay those fees.
Procedural History
{¶3} On April 20, 2017, the Mercer County Grand Jury returned a six-count indictment against Junod alleging that he committed Count One: Aggravated
{¶5} On February 21, 2018, the prosecution entered a nolle prosequi on the Firearm and Forfeiture of a Weapon specifications on Counts One and Two; on the Firearm and Forfeiture of a Weapon while under Disability specifications on Counts Three and Four; and on Count Five, the Having Weapons while under Disability charge, and the attached Firearm and Forfeiture of a Weapon while under Disability specifications.
{¶6} On February 21 and 22, 2018, the trial court conducted a jury trial on the remaining charges and specifications listed in the indictment. The jury found Junod guilty on Count One: Aggravated Robbery; Count Three: Kidnapping; Count Four: Abduction; and Count Five (formerly Count Six): Petty Theft. The jury found Junod not guilty on Count Two: Felonious Assault. The trial court set a hearing on the Repeat Violent Offender specifications attached to the Aggravated Robbery and
{¶7} On March 19, 2018, the trial court issued its judgment entry of conviction and sentence. Specifically, the trial court found Junod to be a Repeat Violent Offender on Counts One and Three based upon his 1999 conviction. With respect to the merger doctrine, the trial court noted that the prosecution stipulated that Counts Three and Four, Kidnapping and Abduction, were allied offenses of similar import and the prosecution elected to proceed on the Kidnapping conviction. The trial court also found that the remaining counts of Aggravated Robbery, Kidnapping, and Petty theft were not allied offenses of similar import, and therefore did not merge for purposes of sentencing. The trial court then imposed an eleven year prison term for Count One: Aggravated Robbery with an additional ten year prison term for the attached Repeat Violent Offender specification; a two year prison term on Count Three: Kidnapping; and a six month term of incarceration for Count Five (formerly Count 6): Petty Theft. The trial court ordered the prison terms for Count One, the attached specification, and Count Three to run consecutively, and the term of incarceration in Count Five (formerly Count 6) to run concurrently,
{¶8} Junod subsequently filed a notice of appeal from the trial court‘s judgment entry of conviction and sentence, asserting the following assignments of error.
FIRST ASSIGNMENT OF ERROR
CLAY JUNOD WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO INFLAMMATORY RELIGIOUS STATEMENTS MADE BY THE STATE IN OPENING AND CLOSING ARGUMENTS; FAILED TO OBJECT TO THE STATE REFERENCING A PRIOR CONVICTION; CONDUCTED VOIR DIRE THAT ALERTED THE VENIRE TO THE EXISTENCE OF A PRIOR CONVICTION; AND FAILED TO ADEQUATELY ARGUE THAT A MISTRIAL WAS WARRANTED. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION. TRIAL TR. VOL. 1, P. 68, 84, 144; TRIAL TR. VOL. 2, P. 309-310, 473-474, 482.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED CLAY JUNOD‘S MISTRIAL REQUEST. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION. TRIAL TR. VOL. 2, P. 309-310.
THIRD ASSIGNMENT OF ERROR
PROSECUTORIAL MISCONDUCT DENIED CLAY JUNOD A FAIR TRIAL AND DUE PROCESS OF LAW. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS, UNITED STATES
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT VIOLATED CLAY JUNOD‘S RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR AGGRAVATED ROBBERY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16 OHIO CONSTITUTION; STATE v. THOMPKINS, 78 OHIO ST.3d 38, 387, 678 N.E.2d 541 (1997); SENTENCING T. P. 57-58. T.D. 187.
FIFTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN SENTENCING CLAY JUNOD, WHEN IT DETERMINED THAT HIS AGGRAVATED ROBBERY AND KIDNAPPING CONVICTIONS SHOULD NOT MERGE AS ALLIED OFFENSES.
SIXTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN SENTENCING CLAY JUNOD WHEN IT IMPOSED COSTS OF COUNSEL WITHOUT FIRST FINDING THAT HE HAD THE ABILITY TO PAY THOSE COSTS. SIXTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; FULLER v. OREGON , 417 U.S. 40, 94 S.Ct. 2116, 40 L.ED.2d 642 (1974);
{¶9} For ease of discussion, we elect to address some of the assignments of error together and out of order.
{¶10} In his fourth assignment of error, Junod challenges his conviction for Aggravated Robbery as against the manifest weight of the evidence. Specifically, Junod claims that the State failed to demonstrate that he used a deadly weapon during the commission of the offense due to the fact that it was later determined that Junod used a BB gun during the robbery.
Standard of Review
{¶11} In reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id. Nevertheless, a reviewing court must allow the trier of fact appropriate discretion on matters relating to the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Evidence Presented at Trial
{¶12} Kaitlan Jones testified that on April 9, 2017, she was working as a front desk clerk at the Best Western Hotel in Celina, Ohio. Ms. Jones testified that at approximately 4:00 p.m., a man whom she identified as Junod, walked into the lobby and asked for an employment application. Junod then asked Ms. Jones where the restroom was located and she directed Junod to its location. Upon returning to the lobby from the restroom, Junod sat on the couch in the lobby. Ms. Jones recalled watching Junod on the cameras in the lobby while in the office behind the front desk. Ms. Jones observed strange behavior from Junod; specifically that he continued to look in different directions to see if anyone else was present. Upon observing Junod stand up from the couch and approach the area, Ms. Jones met Junod at the front desk.
{¶13} Ms. Jones recalled inquiring if Junod had completed the employment application. As she reached out to take the application, Junod aggressively grabbed her wrist, held it down on the desk, and brandished a gun. Ms. Jones testified that the gun was sitting on the counter pointed at her stomach, which especially alarmed her being that she was four and half months pregnant. Junod asked Ms. Jones if anyone else was present. Ms. Jones responded that she was the only employee on
{¶14} Ms. Jones recalled being terrified for her life and the life of her unborn child. After Junod left, she grabbed the hotel keys, ran to the employee bathroom, locked herself inside, and called the Celina Police Department. She gave a detailed description of Junod to the dispatcher.
{¶15} Shortly thereafter, Sergeant Colin Fuelling of the Celina Police Department arrived at the hotel. He encountered Ms. Jones in the bathroom. He recalled that she was very shaken and quivering in fear. Ms. Jones recounted the details of the incident and gave a description of the suspect to Sgt. Fuelling, who asked to see the footage from the hotel‘s surveillance cameras. Ms. Jones contacted Muhammed Khokar, the owner of the hotel, who provided Sgt. Fuelling with the surveillance footage. Mr. Khokar also authenticated the video surveillance footage that was played for the jury and admitted as Exhibit 2 at trial. This footage depicts the events from two vantage points: one from behind the clerk‘s desk where Ms. Jones was located during the robbery, and the other from the lobby where both the front entrance and the customer side of the clerk‘s desk can be viewed.
{¶17} Sgt. Fuelling testified that he immediately recognized Junod upon viewing the surveillance footage. He explained that he had encounters with Junod in the past and was familiar with him. While Sgt. Fuelling gathered evidence at the hotel, Officer Gabriel Bartlett with Celina Police Department secured the area and began tracking Junod with his K-9 partner, Peng. While tracking, Officer Bartlett received a call about an unidentified male walking through a nearby residential yard. Michael Staugler was the person who informed law enforcement about this suspicious activity.
{¶18} Mr. Staugler testified that he lives approximately four blocks from the hotel, and on the afternoon of April 9, 2017, he observed a male walking on his property line, which according to him was unusual. Shortly thereafter, Mr.
{¶19} Although he was not able to identify the individual he saw walking on his property, Mr. Staugler was able to give a general description of the person, which matched Junod, and he was also able to identify at trial the green and white striped polo shirt and sunglasses that he found in his yard. The items, as well as pictures of them, were admitted as exhibits at trial, and were similar to those items worn by the man on the surveillance footage. Officer Bartlett further testified that he and Peng were unsuccessful in tracking the suspect that afternoon.
{¶20} Officer Ronald Waltmire of the Celina Police Department testified that he arrived at the hotel and observed a “very traumatized” Ms. Jones and recalled that it took her some time to calm down. (Trial Tr. 379). He viewed the surveillance footage and also recognized Junod. Officer Waltmire explained that he encountered Junod on a prior complaint concerning a separate incident on the same stretch of
{¶21} The next day, on April 10, 2017, Officer Chad Kunkleman of the Lima Police Department was on bicycle patrol when he observed suspicious conduct in the parking lot of a local hotel in Lima known for illicit drug activity. Officer Kunkleman approached a red SUV with out-of-county plates and spoke to the two females seated inside. Officer Kunkleman observed a rolled marijuana cigarette in the driver‘s hand. Officer Kunkleman obtained consent to search the vehicle and found a man curled up in the back of the SUV facing the back seat. Officer Kunkleman ordered the man out of the vehicle. He patted the man down and found an Ohio Driver‘s License identifying the man as Junod. Officer Kunkleman then learned of the outstanding warrant for Junod‘s arrest. Officer Kunkleman returned to the vehicle and found a gun and two cellphones laying where Junod had been situated in the back of the SUV. When Officer Kunkleman picked up the gun and examined it, he realized it was a BB gun. Junod was taken into custody by Lima Police and extradited to Mercer County. The evidence found in Lima was also
Discussion
{¶22} On appeal, Junod claims that his conviction for Aggravated Robbery is against the manifest weight of the evidence because the State failed to demonstrate that the BB gun used during the commission of the offense is a deadly weapon.
{¶23} Junod was convicted of Aggravated Robbery, in violation of
(A) No 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 do any of the following:
(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it * * *.
{¶24} Section
{¶25} Although not a firearm, a BB gun can be a deadly weapon if the BB‘s are expelled at a sufficient rate of speed. State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-Ohio-3113, ¶ 49. Even if the BB‘s are not powerful enough to cause death, a BB gun can be a deadly weapon if used as a bludgeon. State v. Bitting, 9th Dist. Summit No. 2017-Ohio-2955, ¶ 13. See State v. Smith, 8th Dist. Cuyahoga No. 94167, 2011-Ohio-306, ¶ 25 (finding that whether a “real” looking toy gun or a real gun was used to commit aggravated robbery was not dispositive because the evidence established that the fear of the victims was of such a nature that they were induced to part with their property against their will). If no evidence is presented to show that a BB gun can be lethal in its use, it cannot be presumed to be capable of inflicting death. Johnson, supra, 2015-Ohio-3113, ¶ 50 citing State v. Brown, 101 Ohio App.3d 784 (1st Dist.1995).
{¶26} Here, the State presented testimony from Officer Kunkleman, the Lima law enforcement officer who found the black BB gun in the SUV where Junod
{¶27} Officer Kunkleman testified that a BB gun could be used in a manner other than shooting, “you could use it to hit somebody, just like you would a bat or anything else like that.” (Trial Tr. at 280-81). In addition, Officer Waltmire testified that the specific BB gun found in the SUV was “a Powerline pellet gun .177 range.” (Id. at 408). He further stated that he was familiar with cases in which a similar gun has caused death. He explained that the BB gun can be “used to fire, using air cartridge to fire pellets that would cause serious injury or death, could be used as a blunt force object, it could be used for many different ways.” (Id.).
{¶28} There was also a considerable amount of evidence presented establishing that Ms. Jones believed the gun Junod used during the robbery was a “real” firearm. Aside from Ms. Jones’ testimony stating that she was terrified and
{¶29} Based on the foregoing discussion, we find that the testimony along with the exhibits presented at trial constitute ample evidence to support the jury‘s finding that the BB gun used by Junod during the commission of the Aggravated Robbery is a deadly weapon as defined by
First, Second, and Third Assignments of Error
{¶30} On appeal, Junod asserts error based on two aspects of the prosecution‘s presentation of its case at trial.
A. Repeat Violent Offender Specification
{¶31} The record reflects that the Aggravated Robbery, Felonious Assault, and Kidnapping offenses charged in the indictment were each accompanied by a Repeat Violent Offender Specification (“RVO“). On the first day of trial, the State, defense counsel, and apparently the trial court, were all under the mistaken
{¶32} After the first day of trial, and before any evidence of Junod‘s prior conviction was introduced, the State brought the matter to the trial court‘s attention. Defense counsel moved for a mistrial and requested that a new jury be empaneled. The trial court overruled Junod‘s motion for a mistrial and instead gave the following curative instruction upon the jury reconvening for trial on the second day.
In jury selection and opening statement, reference was made to a prior conviction and a repeat violent offender specification. The jury shall disregard that information and not consider it for any purpose. There will not be any evidence of a prior conviction or a repeat violent offender specification.
As with the other Court instructions, you‘re required to follow these instructions.
(Trial Tr. at 325).
{¶33} Junod challenges the handling of the RVO specification at trial in two respects. First, he claims that his counsel was ineffective for failing to object to the
1. Ineffective Assistance of Counsel
{¶34} “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial [court] cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish a claim of ineffective assistance of counsel, a defendant must show that the performance of trial counsel was deficient and that the deficient performance prejudiced him. State v. Finfrock, 3d Dist. Allen Nos. 1-18-42, 1-18-43, 1-18-44, 2018-Ohio-5057, ¶ 19, citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
{¶35} To prove an allegation of ineffective assistance of counsel, Junod must satisfy a two-prong test. First, Junod must establish that his trial counsel‘s performance has fallen below an objective standard of reasonable representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To demonstrate that counsel‘s performance was deficient, the defendant must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed
{¶36} Second, Junod must demonstrate that he was prejudiced by counsel‘s performance. Strickland, 466 U.S. at 687. To show that he has been prejudiced by counsel‘s deficient performance, Junod must prove that, but for counsel‘s errors, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. Conjectural evidence—predictions about what evidence could possibly be without a basis in the record—does not support a showing of prejudice to establish a claim of ineffective assistance of counsel. Columbus v. Oppong, 10th Dist. No. 15AP-1059, 2016-Ohio-5590, ¶ 35.
{¶37} The failure to make either the deficiency or prejudice showing defeats a claim of ineffective assistance of counsel. State v. Frye, 10th Dist. Franklin Nos. 14AP-988, 14AP-989, ¶ 11, citing Strickland 466 U.S. at 697. Thus, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it
{¶38} At the outset it is our conclusion that trial counsel‘s failure to be familiar with the relevant law regarding the proper procedure for trying the RVO specification and thereby allowing Junod‘s prior conviction to be discussed in front of the jury without objection, was clearly deficient and fell below an objective standard of reasonable representation as to this issue under the first prong of Strickland. However, despite trial counsel‘s failure in this respect, the record does not demonstrate that but for this error, the outcome of the trial would have been different under the second prong of Strickland.
{¶39} Specifically, the record indicates that trial counsel questioned potential jurors whether their ability to render a fair and impartial decision would be affected by their awareness of Junod‘s prior felony conviction. None of the jurors raised their hands. Defense counsel then asked whether any of the jurors believed “that a person who commits a felony is more likely than another person to commit another felony.” (Trial Tr. at 144). Two potential jurors raised their hands. Trial counsel further questioned these jurors. One juror indicated that the amount of time that had passed since the prior felony was important and stated “sometimes people do things when they‘re quite young that they wouldn‘t do once they were older.” (Id. at 145).
{¶40} Thus, in addition to the curative jury instruction given by the trial court ordering the jury to disregard any mention of Junod‘s prior conviction, this case is somewhat unique in that we also have a direct dialogue with members of the jury on voir dire regarding their ability to be fair and impartial despite knowledge of Junod‘s prior conviction. Finally, the record demonstrates that the evidence of Junod‘s guilt, which included a video recording of Junod committing the offenses, was overwhelming. As a result, we cannot say that Junod has established that he was prejudiced by trial counsel‘s error. Consequently, we find trial counsel‘s error to be harmless and not a sufficient basis to constitute ineffective assistance of counsel.
2. Mistrial
{¶41} Junod also claims that his counsel was ineffective for failing to “adequately” argue that a mistrial was warranted. However, we find no basis in the record to support Junod‘s claim that his counsel‘s performance was deficient in this
{¶42} Junod further assigns error to the trial court‘s decision to overrule his motion for a mistrial based on the mistaken discussion of his prior conviction in front of the jury during voir dire and opening statement.
{¶43} An appellate court reviewing a trial court‘s decision on a motion for mistrial defers to the judgment of the trial court, as it is in the best position to determine whether circumstances warrant a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 (1988). Thus, we review a trial court‘s decision for an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 182 (1987). An abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶44} In determining whether a defendant was deprived of a fair trial, we must determine whether, absent the error or irregularity, “the jury would have found the appellant guilty beyond a reasonable doubt.” State v. Morris, 10th Dist. Franklin Nos. 18AP-208, 18AP-209, 2018-Ohio-5252, ¶ 44, citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984). To determine whether the error resulted in prejudice, we
{¶45} The Supreme Court of Ohio has held that where reference to a prior arrest or conviction was fleeting and promptly followed by a curative instruction, such a reference did not unfairly prejudice the accused so as to require a mistrial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961. Furthermore, a jury is presumed to follow the instructions, including curative instructions, given to it by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168.
{¶46} Here, we find the curative instruction, together with some direct input from the jury favorable to Junod on the matter, remedied any prejudicial detriment to Junod. Moreover, in light of the overwhelming evidence of Junod‘s guilt, the record clearly supports the conclusion that even absent the erroneous comments about the prior conviction, the jury would have found Junod guilty of the offenses that it did beyond a reasonable doubt. Accordingly, we conclude the trial court‘s decision to deny Junod‘s motion for a mistrial was not an abuse of its discretion.
B. Prosecutor‘s Religious Statements
{¶47} In his third assignment of error, Junod argues that the prosecutor made religious references during opening, closing, and rebuttal arguments that were
{¶48} At trial, the prosecutor initially framed Junod‘s conduct in biblical terms, telling the jury during opening statement.
Thou shall not steal. This, is the eighth of ten commandments, is just one of the Biblical laws of ethics and worship given by God to Moses on Mount Sinai. And it sounds easy to understand, and easy to follow, but as we all know from living in the real world, apparently following the eighth commandment is not easy for everyone.
In our modern society, it turns out that some people struggle with this concept, or at least with implementing the concept into their lives. So much so, that Ohio now has hundreds of pages of criminal laws for people to follow. Certainly have come a long way since those first ten commandments.
One such person who struggled to embrace this eighth commandment is this Defendant, Clay Junod.
(Tr. at 68-69).
{¶49} However and more significantly, the prosecutor then elaborated upon the biblical theme in closing argument:
Ladies and gentlemen, I began this process yesterday with you and talked to you about the eighth of the ten commandments, thou shalt not steal, from the—God gives them to Moses on Mount Sinai. We talked about that people have struggled implementing that commandment into their life. I did a little more research on that, and what I found out was that when they talk about steal in the Bible and the eighth commandment, what they‘re really talking about was not the taking of people‘s property back then. What they were talking about was an interpretation that stealing is really kidnapping, stealing an actual person. Thou shalt not
kidnap is probably more likely a better title for the eighth commandment than we understand it to be, thou shalt no steal. How fitting, when we analyze Mr. Junod‘s conduct in this case. He kidnapped, abducted, stole, felonious assaulted and committed the offense of aggravated robbery under Ohio law. For these crimes, I ask you to find him guilty. Thank you.
(Tr. at 473-74).
{¶50} And again, on rebuttal:
Ladies and Gentlemen, when you go back to the jury room, I want to leave you with one last thought, which is a quote from a movie. I‘m a bit of a movie buff. I recently watched the movie The Kite Runner. It was popular a few years ago, and cycled back up on our Netflix. And there is a quote in that movie, and it‘s about stealing. And it says that there is only one sin, only one, that‘s theft, because every other sin is a variation of theft. When you kill a man, you steal his life. When you steal his wife‘s right to a husband, when you kill him, you rob the children of their father. When you tell a lie, you steal someone‘s right to the truth. And when you cheat, when you steal, you steal someone‘s right to fairness.
Mr. Junod stole. He committed that sin.
(Tr. at 481-82).
{¶51} On appeal, Junod claims that “there is a strong possibility that he would have been acquitted of aggravated burglary [sic], but for the State‘s inflammatory and improper argument.” (Appt. Br. at 15). In this instance, we find the prosecutor‘s discussion of his opinion on biblical interpretation during the trial, and in particular the comments in closing argument, to be highly improper and erroneous. The prosecutor‘s comments clearly constituted an improper attempt to
{¶52} Nevertheless, in order for Junod to prevail on a claim for prosecutorial misconduct, he must not only demonstrate that a prosecutor did or said something improper, but he must also show that the conduct prejudicially affected his rights. State v. Smith, 14 Ohio St.3d 13, 14, (1984). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982). We will not deem a trial unfair if, in the context of the entire trial, it appears clear beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper conduct. State v. Treesh, 90 Ohio St.3d 460, 464 (2001). State v. Tenace, 109 Ohio St.3d 255, 262, 2006-Ohio-2417, ¶ 45.
{¶53} Using these standards, we find no basis for reversing Junod‘s convictions based upon the prosecutor‘s comments. Even though we find the
{¶54} Likewise, we find that defense counsel‘s failure to object to the impropriety of the prosecutor‘s biblical references fell below the objective standard of reasonable representation on this issue under the first prong of Strickland. However, for reasons already discussed, we do not find that Junod was prejudiced by his counsel‘s failure to object to these comments under the second prong of Strickland. Accordingly, we conclude that this claim also is insufficient to constitute ineffective assistance of counsel.
Fifth Assignment of Error
{¶56} In his fifth assignment of error, Junod claims that the trial court erred when it failed to merge his convictions for Aggravated Robbery and Kidnapping at sentencing. Specifically, Junod argues that the trial court erred when it determined that his conduct comprising the two offenses were of dissimilar import.
Legal Standard
{¶57} “A defendant bears the burden of proving that the offenses for which he has been convicted and sentenced constitute allied offenses of similar import.” State v. Johnson, 3d Dist. Allen No. 1-16-41, 2017-Ohio-6930, ¶ 13, quoting State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 18. Additionally, a reviewing court may look to the information contained in the record to make its allied offense determination. Johnson, at ¶ 13. An appellate court then reviews de novo the question of whether offenses are allied offenses of similar import. State v. Potts, 3d. Dist. No. 5-16-03, 2016-Ohio-5555, ¶ 93.
{¶58}
(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.
{¶59} In determining whether offenses are allied, courts are instructed to consider three separate factors: the conduct, the animus, and the import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Convictions do not merge and a defendant may be sentenced for multiple offenses if any of the following are true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus. Id. at ¶
{¶60} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
Discussion
{¶61} At sentencing, Junod‘s counsel argued that the convictions for Aggravated Robbery and Kidnapping should merge because Junod perpetrated the crimes upon the same victim and with a single animus. Specifically, Junod‘s counsel argued that the Junod‘s conduct of grabbing and holding down Ms. Jones’ wrist, which constituted the Kidnapping was merely incidental to the Aggravated Robbery. The trial court disagreed and concluded that the Junod‘s commission of
{¶62} Moreover, the record demonstrates there were two separate victims in this case, Best Western and Ms. Jones. Both were identified as victims of the Aggravated Robbery offense in the indictment, while Ms. Jones was the sole victim of the Kidnapping offense. We agree with the trial court that these offenses were of dissimilar import not only because there were two separate victims, but also because Junod‘s commission of the offenses caused separate and distinct harms; the psychological, mental, or emotional harm to Ms. Jones and the economic harm to Best Western. See e.g., State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 98 (separate victims); State v. Johnson, 3d Dist. Allen No. 1-16-41, 2017-Ohio-6930, ¶ 18 (separate and distinct harms).
{¶63} Given the facts and circumstances of the case, we find that Junod separately committed Aggravated Robbery and Kidnapping and such are not crimes of similar import under the facts presented. As such, the trial court‘s determination that the two convictions were not subject to merger for sentencing purposes was supported by the record, and Junod‘s fifth assignment of error is overruled.
{¶64} In his sixth assignment of error, Junod argues that the trial court erred when it ordered him to pay court-appointed counsel fees without considering his ability to pay the fees before they were imposed.
{¶65} At the outset, a trial court‘s order to pay court-appointed counsel fees is distinguishable from both court costs and financial sanctions. Court-appointed counsel fees and expenses approved by a court are not court costs or a financial sanction, and they are not directly enforceable as a criminal sanction.
{¶66} This Court has previously stated, however, that:
[A]n indigent defendant may properly be required to pay his attorney fees only after the court makes an affirmative determination on the record in the form of a journal entry, that the defendant has, or reasonably may be expected to have, the
means to pay all or some part of the cost of the legal services rendered to him. The court must then enter a separate civil judgment for the attorney fees or any part thereof that the court finds the defendant has the ability to repay.
State v. Ramsey, 3d Dist. Marion No. 9-10-55, 2012-Ohio-134 ¶ 22, State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶ 50, quoting City of Galion v. Martin, 3d Dist. No. 3-91-06, *5 (Dec. 12, 1991). Here, the trial court failed to make an affirmative finding of Junod‘s present or future ability to pay court-appointed attorney‘s fees in its sentencing journal entry. Moreover, a review of the sentencing transcript does not reveal that the trial court made a determination on the record that Junod is financially able to pay for his court appointed counsel, or make any reference to the PSI, which contained Junod‘s financial and employment information. See, State v. Taylor, 2d Dist. Montgomery No. 27700, 2018-Ohio-2858, ¶ 37 (Welbaum, J., dissenting), motion to certify allowed, 154 Ohio St. 3d 1421, and appeal allowed, 2018-Ohio-4495, ¶ 37, 154 Ohio St. 3d 1421 (discussing a conflict between the appellate districts regarding how a trial court satisfies the duty to make an ability-to-pay determination under
{¶67} To the contrary, with respect to the appeal, the trial court specifically stated:
[The] Court finds that you‘re indigent for purposes of appeal. The Court finds that because you are indigent, and that‘s been reflected also in the fact that no fines were imposed, you are
entitled to have a lawyer represent you at—at all stages of the appeal. * * * But you have that lawyer to represent you at no cost. You have a right to have a timely appeal filed at no cost to you.
(Sent. Tr. at 60).
{¶68} Accordingly, because the record does not establish that the trial court made a determination regarding the Junod‘s ability to pay prior to imposing the court-appointed attorney‘s fees, and because the imposition of the fees appears to be inconsistent with affirmative statements made by the trial court regarding Junod‘s financial ability, we conclude that the trial court erred in assessing court-appointed attorney‘s fees in the sentencing entry. Consequently, we vacate that portion of the trial court‘s judgment imposing the court-appointed attorneys fees and remand this matter for the trial court to either conduct a hearing as to Junod‘s ability to pay the attorney‘s fees pursuant to
{¶69} Based on foregoing, the judgment and sentence of the trial court is affirmed in part and reversed in part.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
ZIMMERMAN, P.J. and PRESTON, J., concur.
/jlr