STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOHN JOSEPH MORRISSEY, III, DEFENDANT-APPELLANT.
CASE NO. 6-21-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY
December 20, 2021
[Cite as State v. Morrissey, 2021-Ohio-4471.]
ZIMMERMAN, J.
Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20212005
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 20, 2021
APPEARANCES:
Howard A. Elliott for Appellant
McKenzie J. Klingler for Appellee
{1} Defendant-appellant, John Joseph Morrissey, III (“Morrissey“), appeals his conviction and sentence of the Hardin County Court of Common Pleas. For the reasons that follow, we affirm in part and reverse in part.
{2} This genesis of this case is the armed robbery of the Village Pantry (a gas station) located at 350 South Main Street, Kenton, Ohio in the early morning hours of December 27, 2020. During the course of the robbery, a white male assailant (wearing a hooded sweatshirt, coat, full face covering, and glasses) pointed a gun at two employees of the gas station ordering them to open the cash register (demanding they give him the money inside) while threatening to pull the trigger if they did not follow his commands. The suspect left the gas station with $154 in cash from the register.
{3} On January 14, 2021, the Hardin County Grand Jury indicted Morrissey on seven сriminal counts including: Counts One and Three, Aggravated Robbery in violation of
{4} Morrissey‘s case proceeded to a jury trial on March 17, 2021, and he was found guilty by a jury of all counts.1 (Doc. Nos. 58, 59, 60, 61, 62, 63, 64, 66). Further, the jury found that Morrissey did have a firearm “on or about [his] person or under [his control] while committing the offense[s] and displayed the firearm, brandished the firearm, indicated that [he] possessed the firearm, or used it to facilitate the offense[s][]” as to Counts One, Two, Three, Four, and Seven. (Doc. Nos. 58, 59, 60, 61, 64, 66).
{5} On March 31, 2021, the trial court sentenced Morrissey.2 (Doc. No. 69). The trial court sentenced Morrissey to a mandatory prison term for a minimum of 11 years to a maximum of 16.5 years on Count One with the eight-year mandatory prison term on Count Two to be served concurrently. (Id.). The trial court imposed a mandatory term of 10 years on the RVO specification, and a 3-year mandatory
{6} Morrissey timely filed his notice of appeal on April 12, 2021. (Doc. No. 72). Morrissey raises three assignments of error for our review. For ease of our discussion, we will first review Morrissey‘s first and second assignments of error together then his third assignment of error separately.
Assignment of Error No. I
None of the convictions herein for aggravated robbery, kidnapping, possession of criminal tools, theft, and possessing weapons under a disability, are supported by sufficient evidence and as such all convictions herein are improper and must be vacated.
Assignment of Error No. II
None of the convictions herein for aggravated robbery, kidnapping, possession of criminal tools, theft, and possessing weapons under a disability, are supported by sufficient evidence and the convictions are against the manifest weight of the еvidence and must be vacated.
Standard of Review
{8} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997), superseded by statute on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Thus, we address each legal concept individually.
{9} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by statute on other grounds, Smith at 89. Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
{10} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses 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.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on mаtters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (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.
Sufficiency of the Evidence Analysis
{11} Notably, Morrissey moved the trial court for a judgment of acquittal under
{12} Morrissey was convicted of all seven counts in the indictment. (Mar. 19, 2021 Tr., Vol. III, at 722-728); (Doc. Nos. 58, 59, 60, 61, 62, 63, 64, 66). Specifically, Morrissey was convicted of two counts of Aggravated Robbery in violation of
{13} Further, Morrissey was convicted of two counts of Kidnapping in violation of
{14} Morrissey was also convicted of Theft in violation of
{15} Morrissey was further convicted of Possessing Criminal Tools in violation of
{16} Finally, Morrissey was convicted for Having Weapons While Under Disability in violation of
{17} Importantly, Morrissey does not dispute any of the underlying elements of any of the offenses of which he was convicted; rather, he disputes only the issue of identity as to his convictions. Thus, we need only address the identity element of the offenses.
{18} “It is well settled that in order to support a conviction, the evidence must establish beyond a reasonable doubt the identity of the defendant as the person
{19} In his sufficiency-of-the-evidence challenge, Morrissey argues that a ratiоnal trier of fact could not have found that he was involved in the robbery of the Village Pantry because the perpetrator was wearing dark clothing and a full facial covering and was never apprehended at or near the crime scene. (Appellant‘s Brief at 8). Morrissey contends that his convictions are based on insufficient evidence because the State presented an entirely circumstantial case against him. In other words, the State offered no direct evidence that he committed any of the crimes charged. “‘Circumstantial evidence’ is the ‘proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning or other facts.‘” Lawwill at ¶ 12, quoting State v. Wells, 12th Dist. Warren No. CA2006-02-029, 2007-Ohio-1362, ¶ 11, citing State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has no less probative value than direct evidence. Griesheimer at ¶ 26, citing Jenks, 61 Ohio St.3d 259, at paragraph one of the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that circumstantial evidence is sufficient to sustain a conviction if that
{20} Indeed, the record before us contradicts Morrissey‘s arguments. The State presented circumstantial evidence that Morrissey was the person responsible for the robbery of the Village Pantry. Specifically, Morrissey was first identified as a person of interest in the investigation by his own family members. Importantly, Morrissey admitted to committing the Village Pantry robbery to Cody Gawkins (an inmate in his cellblock at Multi-County Correctional Facility) who testified at his trial and was subject to cross-examination. (See Mar. 17, 2021 Tr., Vol. I, at 247-280, 282-289, 400-407); (Mar. 18, 2021 Tr., Vol. II, at 492-511); (State‘s Exs. 28, 35, 36).
{21} Nonetheless, Morrissey opines that the evidence is insufficient to establish that he was the person who committed the offenses due to discrepancies and variations in witnesses’ testimonies relating to his height, his mannerisms, and his voice. To us, Morrissey is arguing the issue of credibility of the witnesses. Assessing the credibility and weight of thе evidence is primarily the role of the trier-of-fact. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 106, citing State v. DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. In this case, the jury had such a role. In reviewing the sufficiency of the evidence, we do not resolve evidentiary conflicts or assess the credibility of witnesses. Instead, we are to
{22} Accordingly, viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could conclude beyond a reasonable doubt that Morrissey was the person who committed the offenses based upon the testimonies of Tyler Triplett (his cousin), Shannon Miller (his mother), Kenton City Police Department Patrolman Melvin Yoder, Susan Long, Melissa Brown (his girlfriend), Josеph Stone (his girlfriend‘s roommate), Cory Gawkins (his blockmate), Laura Gettings, and Kenton City Police Detective Daniel Kemmere. As such, all of Morrissey‘s convictions are based on sufficient evidence.
{23} Having concluded that Morrissey‘s convictions are based on sufficient evidence, we address Morrissey‘s arguments that his convictions are against the manifest weight of the evidence.
Manifest Weight of the Evidence Analysis
{24} Similar to his sufficiency-of-the-evidence arguments, Morrissey argues that the еvidence identifying him as the person who committed the offenses at the Village Pantry lacked credibility and reliability by virtue of the variations and conflicting witnesses’ testimonies’ presented. In particular, Morrissey contends that
{25} “Although we review credibility when considering the manifest weight of the evidence, the credibility of witnesses is primarily a determination for the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671, ¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,] and voice inflections, and use these observations in weighing the credibility of the proffered testimony.‘” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).
{26} Here, Morrissey does not attack a specific witnesses’ credibility, rather, he argues that because there were discrepancies in the testimonies, that should have weighed heavily against his convictions. Notwithstanding his arguments, “we are mindful of the jury‘s ‘superior first-hand perspective in judging the demeanor and credibility of witnesses.‘” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 125, citing DeHass at paragraph one of the syllabus. Indeed, the jury heard the witnesses’ testimonies and was in the best position to
{27} Moreover, the evidence that we summarized in our sufficiency-of-the-evidence analysis (supporting Morrissey‘s convictions) is weightier than the evidence against it, and thus, we cannot say that the evidence weighs heavily against Morrissey‘s convictions. Accordingly, we cannot conclude that the jury clearly lost its way, which created such a manifest miscarriage of justice that Morrissey‘s convictions must be reversed.
{28} Accordingly, Morrissey‘s first and second assignments of error are overruled.
Assignment of Error No. III
Unless there is a significant passage of time for the restraint of a victim or a significant movement during the offense from one location to another the offenses of aggravated robbery and kidnapping must be merged.
{29} In his third assignment of error, Morrissey argues that his convictions for Aggravated Robbery and Kidnapping are subject to merger. Specifically, Morrissey argues that the trial court should have merged his Aggravated Robbery convictions (under Counts One and Three) with his Kidnapping convictions (under
Standard of Review
{30}
(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 defendаnt may be convicted of all of them.
{31} Whether offenses are allied offenses of similar import is a question of law that this court reviews de novo. State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio 894, ¶ 128, citing State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36, citing State v. Loomis, 11th Dist. Ashtabula No. 2002-A-0102, 2005-Ohio-1103, ¶ 8. When applying de novo analysis, we must independently determine whether
Analysis
{32} “Separate convictions are permitted under
{33} The Supreme Court of Ohio held that “for purposes of
{34} Although, we recognize that the trial court imposed concurrent sentences for Count One with Count Two and Count Three with Count Four, the imposition of concurrent sentences is not the equivalent of merging allied offenses. See State v. Russell, 5th Dist. Licking No. 2021 CA 0026, 2021-Ohio-3982, ¶ 38, citing State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17. Hence, a trial court must merge the сrimes into a single conviction and impose a sentence that is appropriate for the offense chosen for sentencing. Id. citing id., citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶ 41-43.
{35} Here, Morrissey specifically challenges the time frame and the relocation involved in the restraint of the victims as to the kidnapping. (Appellant‘s Brief at 16). Indeed, a brief restraint of the victim is present in every Aggravated Robbery. State v. Morris, 1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 17, citing State v. Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 29. To determine whether kidnapping and another offense are subject tо merger, the primary question is “whether the restraint or movement of the victim is merely incidental to a separate
{36} Because this issue involves a fact-specific analysis, we undertake a review of the record as it pertains to the Aggravated Robbery and Kidnapping offenses. The State offered (in its case-in-chief) the testimony of Ashley Arnold (“Arnold“), a third-shift employee at Village Pantry working in the early morning hours оn December 27, 2020. (Mar. 17, 2021 Tr., Vol. I, at 191-192). Arnold testified that she was in an office area (behind a cigarette wall) directly behind the cash registers, seated in a chair talking to her co-worker Dakota Johnson (“Johnson“) and clocking out of her shift. (Id. at 192-195). According to Arnold‘s testimony, she observed a white male (approximately six-foot-tall) dressed in all black with a gun enter the gas station from the Detroit Street entrance. (Id. at 196,
{37} Considering the specific facts of this case, we do not find thаt Morrissey‘s restraint of Arnold and Johnson was prolonged so as to demonstrate a significant independent event separate from the Aggravated Robbery offenses. See Logan, 60 Ohio St.2d 126, at syllabus; See also Stall, 2011-Ohio-5733, at ¶ 20-21. Indeed, from our review of State‘s Exhibit 1 and the testimony of Arnold the entire incident took no more than three minutes. Morrissey moved the women only a few feet out of the office, through an open door to the area directly behind the check-out counter in order to have them open the cash registers. Both offenses had a similar import, were committed as one act with the same motivation. Consequently, in our view the Kidnapping of Arnold and Johnson was “merely incidental” to the crime of Aggravated Robbery. See id. Moreover, we do not say Morrissey‘s movement of Arnold and Johnson was “substantial so as to demonstrate a significance independent of” the Aggravated Robbery offenses. See id.
{38} Accordingly, we conclude that the Aggravated Robbery and Kidnapping offenses of which Morrissey was convicted were allied offenses of similar import. Consequently, the trial court erred by not merging Counts One and Two (involving Arnold) and Counts Three and Four (involving Johnson) for purposes of sentencing.
{39} For the foregoing reasons, the judgment of the Hardin County Common Pleas Court is affirmed in part and reversed in part, and the matter is
WILLAMOWSKI, P.J. and MILLER, J., concur.
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Judgment Affirmed in Part, Reversed in Part and Cause Remanded