State v. SmithState v. Smith
Michael J. Short for Appellant
Terri L. Kohlrieser for Appellee
{¶1} Defendant-appellant Brian K. Smith, Jr., (“Smith“) appeals the February 14, 2013, judgment of the Allen County Common Pleas Court sentencing Smith to an aggregate prison term of fifteen years upon Smith‘s convictions for two counts of Felonious Assault in violation of
{¶2} The facts relevant to this appeal are as follows. On March 8, 2012, Linsey Knoch (“Knoch“) and Christopher Miller (“Miller“) were visiting with Knoch‘s good friend Candace Williams (“Williams“) at Williams‘s residence.2 At the time, Williams was pregnant with Smith‘s child. While Knoch and Miller were at Williams‘s residence, Smith came over. Later, when Williams was already upstairs asleep, Knoch and Smith got into an argument as Knoch called Smith a “dead beat father.” Eventually, as the argument continued, Smith became upset and hit Knoch in the head, knocking her to the floor.
{¶4} Back inside the residence, Smith resumed beating Miller. At some point, Miller fell to the floor and Smith repeatedly kicked Miller in his back and head. Knoch tried to stop Smith from continuing to kick Miller in the head, but Smith head-butted her, knocking her down, causing a large hematoma to develop on her forehead.
{¶5} Smith eventually got a saucepan from the kitchen and repeatedly beat Miller with it, striking Miller with such force that the pan was dented. While Smith beat Miller, Smith yelled at Miller, “If you go down, she gets it,” meaning that if Miller passed out, Smith would start to beat Knoch.
{¶6} At one point, Smith told Miller and Knoch that Smith was going to cut them up into little pieces and bury them in the basement. Smith looked through
{¶7} After the beatings ceased, Smith forced Miller to wipe his blood off the walls in the living room with a baby wipe, saying to Miller, “Wipe the walls, bitch! I ain‘t getting caught up from this!” Knoch observed that Miller appeared to barely be conscious, but was complying with the orders that Smith gave him.
{¶8} Eventually, Smith told Miller and Knoch to take their clothes off. Knoch talked Smith out of having to take her clothes off, but Miller disrobed, at which point Smith took Miller‘s money. Knoch then again tried to escape, but Smith put his hand against the door and would not let her out.
{¶9} Smith next ordered Miller upstairs to take a shower to wash the blood off of him, and Knoch went with him. During that time, Smith came up and down the stairs repeating how he was going to cut them up and bury them in the basement. On one of the times up the stairs, Smith threw a wine bottle at Knoch that hit her in the head with such force that it cut her head deeply, going through to the third layer of skin/tissue causing her to bleed profusely. This injury was approximately three inches long and later required 28 sutures to close.
{¶10} While this was going on, Williams, who had been in her room asleep with her children, managed to call one of her friends and had her friend call the police. The police subsequently arrived to Williams‘s residence and Smith made
{¶11} When no one answered the door, police broke the glass to gain entry into the residence. Knoch then dashed down the stairs with blood all over her forehead and told the officers that “he” was still upstairs. Officers searched the residence and located Smith, who was hiding under a mattress. Smith, who also had active warrants out for his arrest, was arrested. As Smith was being taken out of the house, he passed Knoch and said, “You know you had that coming.”
{¶12} Knoch and Miller were taken by ambulance to St. Rita‘s Medical Center in Lima. Miller had to be placed on life support to aid his breathing and he slipped into a coma. He also suffered a broken rib and a laceration in his nostril that required what the doctor referred to as a “complex repair.” Miller‘s airway was stabilized and he regained consciousness later that evening. After a few days in the hospital, he was released. However, due to nerve damage he suffered, he has permanent injuries to his arms with nerve sensitivity and numbness.
{¶13} Knoch‘s wound on her head had gone down to the last layer of tissue just before the skull. The Physician‘s Assistant stated that in his 10 years of ER experience less than 5% of these wounds had involved injuries going down that far. Knoch was treated and released the same day.
{¶15} On August 27, 2012, Smith filed a motion for bill of particulars. (Doc. 11).
{¶16} On August 31, 2012, Smith filed a motion to suppress, arguing that, inter alia, a statement Smith gave March 8, 2012, to Detective Scott Leland should be suppressed. (Doc. 13). On September 27, 2012, a hearing was held on the motion to suppress. On October 9, 2012, the trial court filed a judgment entry denying Smith‘s motion to suppress the statement he gave to Detective Scott Leland. (Doc. 24).
{¶17} On October 16, 2012, the State filed a bill of particulars. (Doc. 29).
{¶19} On January 8, 2013, the trial court entered a judgment entry of conviction, stating that Smith had pled guilty to two counts of Felonious Assault in violation of
{¶20} On February 14, 2013, a sentencing hearing was held. At the sentencing hearing, Smith‘s mother gave testimony that Smith had an alcohol problem and that he needed help with that problem. Smith also gave a statement that he had a drug and alcohol problem, and that he was sorry for what he had done to the victims.
{¶22} It is from this judgment that Smith appeals, asserting the following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS FOR THE PURPOSES OF SENTENCING.
{¶23} In his assignment of error, Smith argues that the trial court erred in failing to merge various counts against him for the purposes of sentencing. Specifically, Smith contends that his convictions for Felonious Assault and Kidnapping against each victim were part of the same course of conduct and should merge, and that his conviction for Aggravated Robbery should merge with his Felonious Assault and Kidnapping offenses against Miller.
{¶24} Whether offenses are allied offenses of similar import is a question of law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3–10–12, 2011–Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1–10–31, 2011–Ohio–1461, ¶ 36.
(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.
{¶25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme Court of Ohio modified the analysis for determining whether offenses are allied offenses of similar import under
{¶26} In this case, Smith was convicted of two counts of Felonious Assault, one count of Aggravated Robbery, and two counts of Kidnapping. The Felonious Assault statute,
(A) No person shall knowingly * * *
(1) Cause serious physical harm to another or to another‘s unborn;
The Aggravated Robbery statute,
(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:
* * *
(3) Inflict, or attempt to inflict, serious physical harm on another.
The Kidnapping statute,
(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
* * *
(3) To terrorize, or to inflict serious physical harm on the victim or another;
{¶27} In State v. Logan, 60 Ohio St.2d 126 (1979), the Ohio Supreme Court provided guidance on when Kidnapping merges with another offense.4 In Logan, the Ohio Supreme Court held the following.
In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to
R.C. 2941.25(B) , this court adopts the following guidelines:(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.
Logan at syllabus, Stall, at ¶ 20.
{¶28} Thus our analysis of the merger issues in this case is guided by
{¶29} Smith argues on appeal that his convictions for Felonious Assault and Kidnapping against each victim should merge, and that his conviction for Aggravated Robbery should merge with his offenses against Miller. Smith contends that the offenses were committed in the same course of conduct. Smith made these same arguments at his sentencing hearing, and at that hearing, the trial court ultimately found “that none of the counts merge.” (Feb. 14, 2013, Tr. at 31). In making this finding, the court reasoned,
While the Felonious Assaults and the Kidnappings could possibly occur at the same time, that‘s only part of the test. The other part is you have to view whether there was a separate animus for the offenses. When I review the discovery and the synopsis in the P.S.I. I would find that all of the offenses are separated sufficiently in terms of temporally and really geographically within the house. I would also point out that according to the information in the discovery and the P.S.I. the initial Felonious Assaults occurred and then, according to the information that the Court has, Miss Knoch was able to get out of the house and the defendant actually ran after her and left the house and spoke to a neighbor. So, the Felonious Assaults had
occurred. Then they come back into the house and they resume. Additional Felonious Assaults and then the Kidnappings occur and the Robbery occurs separately from that.
So, I would find that there are separate animuses for all of the offenses.
(Feb. 14, 2013, Tr. at 31).
{¶30} Analyzing first the Felonious Assault, Kidnapping, and Aggravated Robbery of victim Miller, the facts of this case show that the Felonious Assault perpetrated by Smith against Miller occurred over a period of time and continued to escalate. Miller was initially beaten bloody by Smith‘s fists. That beating was stopped when Knoch attempted to leave the residence. After leaving Miller momentarily to bring Knoch back into the residence, Smith resumed beating Miller until Miller fell to the ground, at which time Smith kicked Miller repeatedly in the head and back. This was interrupted when Knoch tried to stop Smith. Subsequently, Miller was further beaten with a kitchen pan to the extent that the pan was heavily dented. As a result of these attacks, Miller was extremely bloody, barely conscious, and his blood had gotten all over the walls.
{¶31} Miller was restrained during these beatings, and in the interim. In addition, Miller was forced to wipe his blood off of the walls, and forced upstairs to take a shower to wash the blood off of him. While Miller was upstairs, the facts indicate that Smith came up and down the stairs and yelled that he was going to cut Miller and Knoch into pieces and bury them in the basement. This constitutes
{¶32} Based on the facts of this case we find that the Felonious Assault and Kidnapping of Miller were separated by time and geography in the home, and that the Kidnapping created a substantial increase in risk of harm separate and distinct from the Felonious Assault, which would preclude merger under Logan. In addition, the record indicates a separate animus due to the later desire to terrorize Miller. Under these circumstances we cannot find that the Felonious Assault and the Kidnapping offenses perpetrated against Miller merge.
{¶33} Furthermore, we cannot find that the Felonious Assault against Miller merges with the Aggravated Robbery of Miller, as the Aggravated Robbery occurred after the Felonious Assault was complete. It is clear from the facts that the Felonious Assault of Miller was not done to further a Robbery, and it only occurred to Smith after he had already assaulted Miller to order Miller to strip and to take Miller‘s money. Thus there was a separate animus for each crime. This is consistent with our decision in State v. Diggle, 3d Dist. No. 2-11-19, 2012-Ohio-1583, wherein a victim was severely beaten and then robbed, and we determined
{¶34} A separate animus also is discernible from the facts for the Kidnapping of Miller and the Aggravated Robbery of Miller as the detention far exceeded the length of time necessary for an Aggravated Robbery and created a substantial increase in risk of harm to Miller. Moreover, the prolonged detention was used to terrorize Miller with the threats of death and being chopped to pieces and buried in the basement. Furthermore, the detention occurred both before and after the Aggravated Robbery. Thus based on the facts of this case, we cannot find that any of the offenses against Miller merge.
{¶35} Turning next to the Felonious Assault and Kidnapping Smith perpetrated against Knoch, we similarly find that the offenses should not merge. Knoch attempted multiple times to get away from Smith and he restrained her liberty in each instance. After Knoch‘s early attempt to get away from Smith where she made it onto the front porch, Smith head-butted her, knocking her to the ground, causing what was described as a large hematoma to develop on Knoch‘s forehead. Knoch later tried for a second time to get away, but Smith blocked the door. Subsequently Knoch was ordered upstairs, and during that time, she was struck in the head by a bottle of wine that Smith had thrown, creating a deep, three-inch long gash that required 28 sutures.
{¶37} Accordingly, we find that none of the offenses committed by Smith should have merged and that the trial court‘s conclusion on this matter at sentencing was correct. Smith‘s assignment of error is overruled.
{¶38} For the foregoing reasons Smith‘s assignment of error is overruled and the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
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