STATE OF OHIO, Plaintiff-Appellee -vs- MAKI RAGLAND, Defendant-Appellant
Case No. 2010CA00023
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 9, 2011
2011-Ohio-2245
Julie A. Edwards, P.J.; William B. Hoffman, J.; Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2009-CR-1028(B); JUDGMENT: Affirmed
For Plaintiff-Appellee
JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio
BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413
For Defendant-Appellant
WAYNE E. GRAHAM, JR. Suite 300 Renaissance Centre 4580 Stephen Circle, N.W. Canton, Ohio 44718
{¶1} Defendant-appellant, Maki Ragland, appeals his conviction and sentence from the Stark County Court of Common Pleas on one count of murder with a firearm specification, one count of aggravated burglary with a firearm specification, four counts of aggravated robbery with firearm specifications, one count of felonious assault with a firearm specification, and one cоunt of having weapons while under disability. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 27, 2009, the Stark County Grand Jury indicted appellant on one count of murder (Count One) in violation of
{¶3} Subsequently, a jury trial commenced on December 14, 2009, on all counts except Count Eight (having weapons while under disability), which was severed. The following testimony was adduced at trial.
{¶5} When Morales opened the door, she let the two black males at the door, who were wearing hoodies, into the house under the belief that Daniel Sankey was waiting for them. While one of the men remained in the front of the house, the other approached Daniel Sankey, who was sitting at a table. Sankey testified thаt he did not pay much attention to the man because he thought it was the person who was bringing the video to him. The following testimony was adduced when Sankey was asked what the man said to him:
{¶6} “A. Well, first he said what‘s up. I said hey, what‘s up, still not looking at him. And he said something like - - trying to be precise word for word. What‘s up. He was like well, you know what this is. I said what is this, you know. And then he proceeded to say something else and I thought he was playing a game, joking around
{¶7} “Q. Now, before you said that did you see anything on him?
{¶8} “A. When he said I think you need to get up he nudged me with a gun.
{¶9} “Q. What did the gun look like?
{¶10} “A. It was long, had the round barrel, had the holes in it and dark in color, but it still looked like it could be a toy to me. And then I said hоw long are you going to carry this game, play this game? I‘m still thinking he is playing around not serious because he wasn‘t real aggressive with what his demand was. So I am not thinking it‘s a robbery.” Transcript at 170-171.
{¶11} After the man hit Sankey in the head with the gun, Sankey jumped up and the man stepped back and shot Sankey.
{¶12} At the time Daniel Sankey was shot, Harmoney, his granddaughter, had just walked past him heading towards a bedroom. Daniel Sankey testified that after the man shot him, the two men went towards the front door as if they were leaving. Sankey then stepped into the bedroom, closed the door and told Marla Morales to grab Harmoney so that they could leave. At the time, Sankey did not see anything wrong with Harmoney, who had asked Morales to pick her up. Aftеr fleeing his house via a side door off of his bedroom, Sankey, who did not realize that he had been shot in the leg and who was bleeding heavily from a head wound, went to a neighbor‘s house. The neighbor called 911.
{¶13} At trial, Daniel Sankey testified that when he went outside of his neighbor‘s house, he saw his daughter, Danielle, walking around hysterically and saw
{¶14} At trial Danielle Sankey testified she was sitting on the couch watching a movie with Jason Nelson in the living room when there was a knock on the door. According to Danielle, the person at the door said their name was Nardo. The following testimony was adduced when Danielle Sankey was asked whether she heard anything going on in the kitchen or the dining room area:
{¶15} “A. I heard my dad say what do you want, what are you here for. And the guy said you know what I am here for. Quit playing around. My dad is like I don‘t know what you are talking about. And then I heard some scuffles and I heard a gunshot. I heard Marlo yell heard the baby.
{¶16} “Q. Back you up for a second. After you heard a gunshot, that would be the first one, did anything - - did you see anyone come into the living room?
{¶17} “A. After I heard the gunshot a few minutes later he was coming out. The first guy had left after the shooting had started. And then I heard another gunshot and the shell from the second gunshot gun came into thе living room. So I seen the shell to the second gunshot. And then he stopped in the living room before he left out and asked us if we had anything, if we had anything to give him. I think he was talking mostly to Jason. I didn‘t see his face or anything, then he left.” Transcript at 236-237. The man left after the two had nothing to give him.
{¶18} Marlo Morales, Daniel Sankey‘s girlfriend, testified that on June 16, 2009, she had celebrated her daughter Regina‘s birthday at Daniel Sankey‘s house. At the
{¶19} “A. The gentleman that was wearing the peanut butter coat told him to go to the bedroom and he came into the bedroom. When he stepped into the bedroom there is a landing there as you are coming in. He wasn‘t paying attention to it and he slipped and that mirror that sits right there by the door, his hoody slid off and at that point I seen his face and knew who he was.
{¶20} “Q. Who did you know him to be?
{¶21} “A. Beans.
{¶22} “Q. When you noticed it was Beans did that cause you to do anything?
{¶23} “A. Made me more nervous.” Transcript at 305.
{¶25} Shortly after the incident, Morales went to the police station where she gave a statement to the police and also picked “Beans” aka William Ferguson out of a photo array. She also picked appellant out of another array and identified him as the shooter. Daniel Sankey, Danielle Sankey and Jason Nelson were unable to pick anyone out of the photo arrays.
{¶26} William Ferguson testified at appellant‘s trial. Ferguson testified that he had pleaded guilty to complicity to aggravated robbery, complicity to aggravated assault, felonious assault and complicity to aggravated burglary and to three firearm specifications and that he had agreed to testify against appellant in exchange for a nine year sentence. Ferguson testified that he had met Marlo Morales at Daniel Sankey‘s house approximately four or five months before the incident in this case either to purchase marijuana or because he was with someone who was purchasing marijuana. He testified that at such time, Regina Morales’ birthday was celebrated.
{¶27} Ferguson testified that, on July 2, 2009, he met Isaiah Thomas earlier in the day. The two were near Aultman Hospital when Ferguson‘s car overheated. Ferguson and Thomas then met up with appellant who, at the time, had a nine
{¶28} Ferguson testified that appellant, after one of them knocked on the Sankey door, identified himself as “Nardo.” After the shooting, Ferguson fled to Elyria but then turned himself in on July 3, 2009, after he heard that a little girl had died. At police headquarters, Ferguson gave a statement to police and picked appellant out of a photo array. Ferguson also told the police that the shooter was “Ragland.” Transcript at 275.
{¶29} At the conclusion of the evidence and the end of deliberations, the jury, on December 18, 2009, found appellant guilty of all of the charges except for having weapons while under disability. The trial court found appellant guilty of such charge.
{¶30} As memorialized in a Judgment Entry filed on January 22, 2010. Appellant was sentenced to fifteen (15) years to life on the murder charge, to ten (10) years on the aggravated burglary charge and to ten (10) years on each of the four counts of aggravated robbery. Appellant also was sentencеd to five (5) years on the charge of felonious assault and to five (5) years on the charge of having weapons while under disability. Appellant also was ordered to serve a three (3) year prison term for the firearm specifications. Counts One through Five were ordered to run consecutively to each other and to the firearm specification. Counts Six through Eight were ordered to run concurrently to each other and concurrently to Counts One through Five, for an aggregate prison sentence of 58 years to life.
{¶32} “I. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION, AND THE JURY‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶33} “II. THE TRIAL COURT PLAINLY ERRED IN IMPOSING MAXIMUM PRISON TERMS FOR APPELLANT‘S SEPARATE CONVICTIONS.
{¶34} “III. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ENTERED A JUDGMENT OF CONVICTION AND SENTENCED THE APPELLANT ON ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF
I
{¶35} Appellant, in his first assignment of error, argues that his convictions for aggravated burglary, felonious assault, murder, and aggravated robbery were against the manifest weight and sufficiency of the evidence. We disagree.
{¶36} In State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court set forth the standard of review when a claim of insufficiency of the evidence is made. The Ohio Supreme Court held: “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. The
{¶37} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the 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 judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N .E.2d 541, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Because the trier of fact is in a better position to observe the witnesses’ demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶38} Appellant initially argues that his conviction for aggravated burglary in violation of
{¶39}
{¶40} “(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
{¶41} “(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.”
{¶42} Appellant, in support of his argument, argues that there was no evidence that either appellant or William Ferguson identified themselves as Marlo Morales’ son, that Morales opened the door to them, and that there was no indication that they were ever requested to leave.
{¶43} However, although appellant may have had consent to enter Sankey‘s home, once he committed an act of violence against Sankey or other inhabitants of the home, the consent was revoked and appellant became a trespasser. See State v. Cutts, Stark App. No. 2008 CA 000079, 2009-Ohio-3563 at paragraph 181. Where a defendant commits an offense against a person in the person‘s private dwelling, the defendant forfeits any privilege, becomes a trespasser and can be culpable for aggravated burglary. See, e.g., State v. Steffen (1987), 31 Ohio St.3d 111, 115, 509 N.E.2d 383. Moreover, we note that Daniel Sankey and Denielle Sankey testified that someone identified himself as “Nardo“, which is the name of Morale‘s son while William Ferguson testified that appellant was the one who identified himself as “Nardo.” Thus, there was testimony that appellant used deception to enter the Sankey home.
{¶44} We find, therefore, that appellant‘s conviction for aggravated burglary is not against the manifest weight or sufficiency of the evidence.
{¶46}
{¶47} “A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
{¶48} Contrary to appellant‘s implication that the gun accidentally went off, we note that at trial, Daniel Sankey testified that after he jumped up after appellant hit him in the head with a gun, appellant “stepped back and shot me.” Transcript at 172. We find, therefore, that there was evidence that appellant purposefully shot appellant. There was evidence that appellant intended to discharge the firearm and did so.
{¶49} Finally, appellant, with respect to his convictions for aggravated robbery, argues that the evidence does not support the same because Daniel Sankey indicated that he believed the activity in the house on July 2, 2009 was a game and was not thinking that it was a robbery.
{¶50} Appellant was convicted of aggravated robbery in violation of
{¶51} As is stated above in the statement of facts, testimony was adduced at trial that appellant, after using deception to gain entrance to the Sankey house, approached Daniel Sankey and demanded money and drugs from him and then hit Sankey in the back of the head with a 9mm caliber handgun and shot him in the leg. As a result of shooting Sankey, appellant shot and killed Harmoney Sankey. Testimony also was adduced that appellant, while armed with a 9mm caliber gun, demanded money from Marlo Morales and took $27.00 from her and that he аlso unsuccessfully demanded money from Danielle Sankey and Jason Nelson.
{¶52} Based on the foregoing, we find that appellant‘s convictions for aggravated robbery were not against the manifest weight or sufficiency of the evidence.
{¶53} In short, we find that, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found appellant guilty of aggravated burglary, felonious assault, murder, and aggravated robbery. We further find that the jury did not lose its way in convicting appellant of such offenses.
{¶54} Appellant‘s first assignment of error is, therefore, overruled.
II
{¶55} Appellant, in his second assignment of error, argues that the trial court‘s imposition of maximum prison terms on appellant for one count of aggravated burglary with a firearm specification, four counts of aggravated robbery with firearm
{¶56}
{¶57}
{¶58} In Kalish, the court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶59} “Thus, despite the fact that
{¶60} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use a two-step approach. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whethеr the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an
{¶61} The sentences that appellant received, in the case sub judice, were within the permissible statutory range, and the court stated in its judgment that it had considered the principles and purposes of sentencing under
{¶62} Furthermore, appellant has not demonstrated that the court abused its discretion in imposing the maximum sentences. The record shows that appellant had a prior criminal history. Appellant had been adjudicated a delinquent child in 2006 by virtue of having committed the offenses of felonious assault and possession of cocaine.3
At the sentencing hearing on December 22, 2009, appellant blamed the incident on Daniel Sankey and the inhabitants of the Sankey house, stating that “if the people were so worried about Harmoney, they wouldn‘t be selling drugs out the house she was living in.” Transcript of Sentencing hearing at 11. Appellant also blamed his convictions on “being young and black” and contended that he was guilty of being “around the wrong people.” Transcript of Sentencing hearing at 11-12. The trial court, in sentencing appellant, also noted that appellant attempted to flee from the police once they came for him.
{¶64} Appellant‘s second assignment of error is, therefore, overruled.
III
{¶65} Appellant, in his third assignment of error, argues that the trial court committed plain error when it failed to merge the offenses of aggravated burglary, aggravated robbery, fеlonious assault and felony murder. Appellant alleged that the offenses of aggravated burglary, aggravated robbery and felonious assault were the underlying predicate offenses for the felony murder charge and that, therefore, they are allied offenses of similar import to felony murder.
{¶66}
{¶67} “(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
{¶68} Recently, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d 1405, 2010-Ohio-6314, - - - N.E.2d - - -, modified the test for determining whether offenses are allied offenses of similar import. In Johnson, the Ohio Supreme Court directed us to look at the elements of the offenses in question and determine whether or not it is possible to commit one offense and commit the other with the same conduct. If the answer to such question is in the affirmative, the court must then determine whether or not the offenses were committed by the same conduct. If the answer to the above two questions is yes, then the offenses arе allied offenses of similar import and will be merged. If, however, the court determines that commission of one offense will never result in the commission of the other, or if there is a separate animus for each offense, then the offenses will not merge according to Johnson, supra.
{¶69} In the case sub judice, appellant was convicted of felony murder in violation of
{¶71} The prosecution can elect any of the above three felonies as charged as the predicate offense.4 Appellant was convicted of Count Three, which was aggravated robbery with Daniel Sankey as the victim. The evidence at trial demonstrated that after Daniel Sankey did not comply with appellant‘s demands appellant hit him in the head with a gun and then shot him in the leg. As a result of shooting Daniel Sankey, appellant shot and killed Harmoney Sankey. Thus, there were separate victims with respect to the aggravated robbery and the felony murder. While Daniel Sankey was the victim of the aggravated robbery, Harmoney Sankey was the victim with respect to the felony murder. Because there were two separate victims, appellant‘s conduct constituted two offenses of dissimilar import. See State v. Maddern, Stark App. No. 1999CA00273, 2000 WL 700307, citing to State v. Jones (1985), 18 Ohio St.3d 116, 480 N.E.2d 408. In Jones, two passengers in the defendant‘s automobile were killed as a result of defendant‘s reckless operation of his vehicle. The Supreme Court found the defendant‘s conduct constituted two offensives of dissimilar import. The “import” being each person killed. Therefore, the Supreme Court concluded, the defendant was lawfully convicted and sentenсed on both counts.
{¶73} As is stated above, appellant was convicted of four counts of aggravated robbery in violation of
{¶74} The next issue for determination is whether or not the offenses of aggravated burglary and felonious assault are allied offenses of similar import. Appellant was convicted of aggravated burglary in violation of
{¶76} “(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.”
{¶77} Appellant also was convicted of felonious assault in violation of
{¶78} “(1) Cause serious physical harm to another or to another‘s unborn;
{¶79} “(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.”
{¶80} We find that the aggravated burglary and felonious assault offenses are not allied offenses of similar import because the offenses were committed separately with a separate animus. The aggravated burglary was committed when appellant, under the guise of being “Nardo“, used deception to gain entrance to appellant‘s home with the intent to commit a robbеry and while having a deadly weapon under his control. The felonious assault did not occur until later when appellant hit Daniel Sankey in the head after demanding money and drugs and then shot Daniel Sankey in the leg. The aggravated burglary, therefore, was complete before the felonious assault took place. The two, therefore, involved separate conduct and a separate animus and are not allied offenses of similar import.
{¶81} We further find that aggravated robbery and felonious assault are not allied offenses of similar import. Appellant committed the felonious assault when he knowingly caused serious physical harm to Daniel and/or Harmoney Sankey or when he
{¶82} Finally, the question that must be addressed is whether or not aggravated burglary and aggravated robbery are allied offenses of similar import. Appellant was convicted of aggravated burglary in violation of
{¶83} “(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
{¶84} “(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.”
{¶85} In order to commit the offense of aggravated burglary, one does not have to actually commit any criminal offense. Rather, one has to trespass with purpose to commit a criminal offense. Thus, appellant committed aggravated burglary when he used deception to gain entry into appellant‘s home with the purpose to commit a criminal offense therein while having a deadly weapon under his control.
{¶87} “(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, оr use it;...
{¶88} “(3) Inflict, or attempt to inflict, serious physical harm on another.”
{¶89} In the case sub judice, appellant committed the aggravated robberies when he approached the four separate victims individually and demanded money and/or drugs. The aggravated burglary and the aggravated robbery involved separate conduct.
{¶90} Based on the foregoing, we find that aggravated burglary and aggravated robbery are not allied offenses of similar import.
{¶92} Appellant‘s third assignment of error is, therefore, overruled.
{¶93} Accordingly, the judgment of the Stark County Court of Common Pleas is аffirmed.
By: Edwards, P.J.
Hoffman, J. and
Delaney, J. concur
JUDGES
JAE/d1013
STATE OF OHIO, Plaintiff-Appellee -vs- MAKI RAGLAND, Defendant-Appellant
CASE NO. 2010CA00023
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-2245
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES