The STATE of Ohio, Appellee, v. LEE, Appellant; The State of Ohio, Appellee, v. Stall, Appellant; The State of Ohio, Appellee, v. Weese, Appellant.
Nos. 3-10-11, 3-10-12, 3-10-13
Court of Appeals of Ohio, Third District, Crawford County
Decided Nov. 22, 2010
190 Ohio App.3d 581 | 2010-Ohio-5672
{1 23} The assignment of error is accordingly overruled.
{1 24} The judgment is affirmed.
Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.
Geoffrey L. Stoll, for appellants.
PRESTON, Judge.
{1 1} Defendants-appellants, Robert Lee, Malcolm Stall, and Michael Weese (collectively, “defendants“), appeal the Crawford County Court of Common Pleas judgment denying their joint motion to merge offenses as allied offenses of similar import. For the reasons that follow, we affirm the trial court‘s judgment as to case No. 3-10-13 (Weese), affirm the trial court‘s judgment as to case No. 3-10-11(Lee), and affirm in part and reverse in part the trial court‘s judgment as to case No. 3-10-12 (Stall).
{1 2} This case concerns a home invasion that took place on October 18, 2009, at a residence in Galion, Ohio that was owned by an elderly couple, Kathleen and Sam Siclair. Specifically, at issue on this appeal is whether certain offenses arising out of the home invasion should have been merged because the offenses are allied offenses of similar import.
{1 3} The general facts of the case are stated as follows. Late in the evening on October 18, 2009, defendants Lee, Weese, and Stall went to the Siclairs’ home with the purpose of stealing from the home approximately $40,000 in cash, which the defendants believed was hidden in a freezer in the Siclairs’ basement. Defendants tried for approximately one hour to covertly gain entrance into the home, but discovered that all of the doors and windows were locked. During this time, Lee noticed that Mr. Siclair was asleep in one of the bedrooms, while Mrs. Siclair was sitting on the floor in the living room seemingly watching TV.
{1 4} Consequently, defendants decided to enter the residence by knocking on the door and forcing their way into the home.
{1 6} Upon gaining entry in the house, Lee and Weese proceeded to search the house for the $40,000 they believed was hidden in a freezer in the basement. Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that while searching the house, defendants repeatedly demanded that she disclose the location of the money and drugs, and when she did not give them a location, she was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she had breathing due to the duct tape, the pain from being struck repeatedly, along with the fact that she suffers from COPD (chronic obstructive pulmonary disease). During the entire home invasion, Mr. Siclair was asleep in a different room, and because of a severe hearing disability did not hear anything.
{1 7} Eventually, after cutting the telephone cords to the house, defendants left the home and took with them jewelry and drugs that they had found inside the Siclairs’ house. Subsequent to defendants’ departure, Mrs. Siclair crawled her way to where her husband was sleeping, woke him up, and used a cell phone to call the police.
{1 8} On November 9, 2009, the Crawford County Grand Jury indicted all three defendants with the following charges:1 aggravated burglary in violation of
{1 10} On January 11, 2010, the trial court issued its order, denying the portion of the motion that was seeking a continuance of the trial date. Thereafter, on January 21, 2010, defendants appeared before the trial court, entered pleas of guilty to the charges set forth in the indictments, and requested to reserve the right to argue the issue of merger at sentencing. Judgment entries of conviction were issued on February 1, 2010.
{1 11} On March 4, 2010, defendants filed their response to the state‘s memorandum in opposition on the merger issue. On that same date, the state filed its allied-offense brief, and on March 5, 2010, defendants filed their allied-offense brief.
{1 12} A hearing on the merger issue was held on March 5, 2010. Defendant Lee, Mrs. Siclair, and Detective Chad Filliater testified at the hearing. Following the presentation of the evidence, the trial court allowed defendants and the state time to present their written closing arguments. Defendants and the state filed their final briefs on March 15, 2010. Thereafter, on March 31, 2010, the trial court issued its ruling on the merger issues, denying the motion to merge the offenses of felonious assault and kidnapping with the offense of aggravated robbery.
{1 13} Defendants were sentenced on April 5, 2010, as follows: on the aggravated-burglary offense, Lee, Weese, and Stall were all sentenced to ten years in prison; on the aggravated-robbery offense, Lee, Weese, and Stall were all sentenced to ten years in prison; on the felonious-assault offense, Lee, Weese, and Stall were all sentenced to eight years in prison; and as to Stall on the kidnapping offense, he was sentenced to ten years in prison. All of defendants’ prison sentences, including the additional unrelated sentences, were ordered to be served consecutively.
{1 14} Defendants now appeal and raise only one assignment of error:
The trial court erred in failing to hold that offenses of aggravated robbery, felonious assault and kidnapping were allied offenses of similar import, requiring merger of the offenses for purposes of sentencing.
{1 15} In defendants’ only assignment of error, they argue that the trial court erred when it failed to find that the offenses of aggravated robbery, felonious assault, and kidnapping were allied offenses of similar import, and as such, the offenses should have merged for purposes of sentencing.
{1 16}
(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.
{1 17} In order to determine whether the trial court should have merged any of the offenses, we must apply the two-step analysis established by the Ohio Supreme Court. State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, ¶ 10-13, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. See also State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 18. First, the court must compare the elements of the crimes. “If the elements of the offenses correspond to such a degree that the commission of one will result in the commission of the other, the crimes are allied offenses of similar import.” Id. at ¶ 19, citing Blankenship at 117. If the offenses are found to be allied offenses of similar import, then the court must proceed to the second step, which calls for reviewing the defendant‘s conduct in order to determine whether the defendant can be convicted of both offenses. “If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.” Brown at ¶ 19, citing Blankenship at 117. Additionally, because this assignment of error presents a question of law, our standard of review is de novo. State v. Loomis, 11th Dist. No. 2002-A-0102, 2005-Ohio-1103, 2005 WL 583791, ¶ 8, citing State v. Ellenburg (July 9, 1998), 4th Dist. No. 97CA597, 1998 WL 393877, at *3.
{1 18} We note that the law regarding allied offenses of similar import has been frequently addressed and discussed by the Ohio Supreme Court. In fact, regarding the first step in the analytical process, the Ohio Supreme Court has had to clarify its holding in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, paragraph one of the syllabus, in which the court held that “[u]nder an
{1 19} However, after Rance, several courts were interpreting the holding in Rance as requiring a strict textual comparison of the elements of the offenses and were only aligning the elements of the compared offenses in determining whether the compared offenses were allied offenses of similar import. As a result, the Ohio Supreme Court clarified Rance in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, and held that “[i]n determining whether offenses are allied offenses of similar import under
{1 20} With that stated, we will now consider the particular offenses that defendants claim are allied offenses of similar import. In this particular case, all three defendants were charged with aggravated burglary, aggravated robbery, and felonious assault, and only Stall was additionally charged with kidnapping. However, we note that for purposes of this appeal, defendants have not alleged that the count of aggravated burglary should have merged with the counts of aggravated robbery, felonious assault, and kidnapping. Thus, we will only consider whether the offenses of aggravated robbery, felonious assault, and kidnapping should have merged for purposes of sentencing.
Aggravated Robbery and Felonious Assault
{1 21} Here, defendants pleaded guilty to aggravated robbery pursuant to
{1 22} First of all, the particular subsections of aggravated robbery and felonious assault analyzed by the Supreme Court in Preston differ from the subsections of aggravated robbery and felonious assault charged in this particular case. In Preston, the defendant was charged with aggravated robbery pursuant to
{1 23} While the charges in Smith were identical to the charges in the case sub judice, we still are hesitant to follow the general proposition in Preston and cited
{1 24} Consequently, for the above two reasons, we are hesitant to rely on the Supreme Court‘s holding in Preston and the subsequent appellate cases that have cited it for the general proposition that aggravated robbery and felonious assault are not allied offenses of similar import. However, even assuming arguendo that aggravated robbery pursuant to
{1 25} Again, “[i]f the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 19, citing Blankenship, 38 Ohio St.3d at 117, 526 N.E.2d 816. Here, based on the evidence presented at the hearing, we find that there was evidence that the aggravated robbery and the felonious assault were committed separately and were committed with separate animus. In particular, the felonious assault was committed when, after being pushed to the ground and hitting her head on the end table, Mrs. Siclair was then punched in her face with such force that it caused her to bleed and required seven stitches at the hospital. The facts indicate that the felonious assault was committed with the purpose to
{1 26} Therefore, we ultimately find that because the offenses were committed separately and with separate animus, the trial court did not err in sentencing the defendants separately on the aggravated-robbery and felonious-assault counts.
Kidnapping and Aggravated Robbery
{1 27} With respect to Stall, we must consider whether the offenses of kidnapping as defined under
{1 28} Recently, the Ohio Supreme Court determined that kidnapping pursuant to
{1 29} The Supreme Court has also discussed the “separate animus” analysis with respect to kidnapping charges and has established the following guidelines in determining whether kidnapping and another offense of the same or similar kind are committed with a 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 offense, 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, 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, at syllabus. As a result, “when a kidnapping is committed during another crime, there exists no separate animus where the restraint or movement of the victim is merely incidental to the underlying crime.” Fears, 86 Ohio St.3d at 344, 715 N.E.2d 136, citing Logan at syllabus.
{1 30} In this case, we find that the facts indicate that the restraint and movement of Mrs. Siclair were merely incidental to the underlying crime of aggravated robbery. The facts in the record illustrate that after getting punched in the face (which was the commission of the felonious assault as discussed above), Mrs. Siclair was dragged by Stall over a step into the kitchen, at which point, Stall then duct-taped her mouth. After taping her mouth, defendants began asking her for the location of the money and drugs, and when Mrs. Siclair would not respond, she was hit with a closed fist. Based on these facts, we fail to see how Stall‘s actions that are claimed to be “kidnapping” were anything other than actions in furtherance of the aggravated robbery.
{1 32} Despite the minimal movement of Mrs. Siclair, the state also claims that Mrs. Siclair was subjected to a greater risk of harm beyond that already created by the factors involved in the commission of the aggravated-robbery offense when Stall duct-taped her mouth, which caused her to have difficulty breathing. However, given the fact that defendants began repeatedly asking her for the location of the money after Mrs. Siclair‘s mouth was duct-taped, we believe that taping Mrs. Siclair‘s mouth only furthered defendants’ attempts at intimidating her into revealing the location of the money, and thus had no significance apart from facilitating the aggravated robbery. While we do not wish to minimize the seriousness of the defendants’ actions or the effect that their actions had on Mrs. Siclair, we simply cannot find that Mrs. Siclair was subjected to a greater risk of harm beyond that already created by the factors involved in the commission of the aggravated robbery. As the Supreme Court stated in Logan, “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.” 60 Ohio St.2d at 131, 14 O.O.3d 373, 397 N.E.2d 1345. “[W]ithout more, there exists a single animus, and
{1 33} Overall, based on the evidence presented at the hearing, and in light of the Supreme Court‘s decision in Logan, we cannot find that the kidnapping was committed separately or with separate animus from the aggravated robbery. Therefore, while we find that the trial court correctly sentenced Stall separately with respect to the aggravated robbery and felonious assault, we find that Stall‘s kidnapping sentence should have merged with his aggravated-robbery sentence.
{1 34} Defendants’ only assignment of error is, therefore, sustained in part and overruled in part.
{1 35} Having found no error prejudicial to the appellants Lee and Weese herein in the particulars assigned and argued with respect to appellants’ assignment of error, we affirm the judgments of the trial court in case Nos. 3-10-11 and 3-10-13. However, having found partial error prejudicial to appellant Stall herein in the particulars assigned and argued with respect to appellants’ assignment of error, we affirm in part and reverse in part the judgment of the trial court in case No. 3-10-12 and remand for further proceedings consistent with this opinion.
Judgment accordingly.
WILLAMOWSKI, P.J., and ROGERS, J., concur.
ROGERS, Judge, concurring separately.
{1 36} I concur fully in the majority opinion and conclusion that Stall‘s kidnapping sentence should have merged with his aggravated-robbery sentence in case 3-10-12. Additionally, I concur with the majority‘s conclusion in cases 3-10-11, 3-10-12, and 3-10-13 that the offenses of felonious assault and aggravated robbery were committed separately and with a separate animus; however, I wish to elaborate on the majority‘s analysis in reaching this conclusion.
{1 37} The majority finds that the defendants’ acts upon entering the victim‘s residence of pushing her to the ground, causing her to hit her head, and punching her in the face constituted the offense of felonious assault and that the felonious assault was committed with the purpose to debilitate the victim and render her immobile. Additionally, the majority finds that the defendants’ acts after dragging the victim into her kitchen of punching her several more times while demanding to know where items were in the residence constituted the offense of aggravated robbery and that the purpose of these punches was to locate and obtain the items. I believe that an additional theory and additional case law support the finding of a separate animus for the felonious assault and aggravated robbery.
{1 39} Here, I would find that the defendants’ act of dragging the victim to another area of her home constituted a break in the temporal continuum or line of distinction and that the defendants’ resumption of punching the victim following this break would constitute a separate and distinct offense. Consequently, I would find that a separate animus existed for the felonious assault and aggravated robbery on this theory as well and would affirm the defendants’ convictions for these separate offenses on that basis.
PRESTON
Judge