State v. StudgionsState v. Studgions
PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-523118
RELEASED AND JOURNALIZED: November 10, 2010
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Jamil Studgions, appeals from his convictions for felonious assault, kidnapping, abduction, and domestic violence. Based on our review of the record and pertinent case law, we affirm in part, vacate in part, and remand for resentencing.
{¶ 2} According to the testimony of the victim, Marjorie Buggs, she and appellant had a romantic relationship and appellant is the father of her daughter. On April 7, 2009, appellant and Buggs traveled to downtown Cleveland to seek the assistance of a public defender. Due to the large number of individuals also seeking assistance in the public defender’s office
{¶ 3} After they left the bar, Buggs’s father picked up the couple and drove them to appellant’s mother’s house. After the couple took a nap, appellant and his mother got into an argument, so the couple decided to leave and travel to University Hospitals, where their daughter was a patient.1 While en route to the hospital, the couple got into an argument over money. Buggs testified that once she parked the car in the hospital’s parking garage, she ran away from appellant and sought refuge in a nearby apartment building. The building was ordinarily locked, but Buggs gained entry as someone was leaving the building.
{¶ 4} Once inside the apartment building, Buggs felt safe because the building was locked. Three to four minutes later, however, appellant gained entry into the building in the same manner as Buggs. According to Buggs, appellant asked her for the car keys, but she refused to give them to him.
{¶ 5} Officers Stephen Brady, Thomas Sindelar, and Jim McGowan with the University Circle Police Department all testified that on the date in question, they arrived in the area near University Hospitals due to a report of two men chasing each other down the street. According to Officer Sindelar, one of the men was reported to be wearing a Notre Dame jacket. When they arrived on the scene, the officers observed Buggs talking to an officer with the Cleveland Police Department. Upon speaking with Buggs, they learned that she and the father of her child got into an altercation and he bit her on the eye. The officers testified that Buggs’s eye was bleeding heavily, and they insisted she be examined at the emergency room. Due to her intoxicated state, the staff at the emergency room suggested that Buggs come back the following day for treatment. When she returned the following day, she received stitches on both the inside and outside of her eye. She also testified at trial that it is difficult to see and she has a permanent scar from the event.
{¶ 6} Appellant was convicted of felonious assault,2 kidnapping,3 abduction,4 and domestic violence.5 The trial judge sentenced him to eight
Law and Analysis
{¶ 7} When deciding whether a conviction was based on sufficient evidence, the appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492; Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 8} The United States Supreme Court recognized the distinction in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The Court held in Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652, that, unlike a reversal based upon the insufficiency of the evidence, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require
{¶ 9} Appellant was first convicted of felonious assault in violation of
{¶ 10} The evidence presented at trial demonstrated that appellant chased Buggs into the apartment complex where she was seeking refuge and, when she refused to give him the car keys, bit her on the eye, causing so much damage that she needed stitches and has a permanent scar. This court has consistently held that the need for stitches constitutes serious physical harm for purposes of a felonious assault conviction. State v. Churchwell, Cuyahoga App. No. 88171, 2007-Ohio-1600, ¶28. See, also, State v. Paythress, Cuyahoga App. No. 91554, 2009-Ohio-2717, ¶7; State v. Payne (July 20, 2000), Cuyahoga App. No. 76539. This evidence alone was sufficient to find appellant guilty of felonious assault.
{¶ 11} Appellant argues that the state did not prove he restrained Buggs’s liberty in order to support his kidnapping and abduction convictions. According to the jury instructions, “[t]o restrain one of her liberty means to limit or restrain the victim’s freedom of movement. The restraint need not be for any specific duration of time or in any specific manner.” Although Buggs did not expressly testify that appellant grabbed her or restrained her liberty in some other fashion, it is unfathomable to think that she simply stood still while appellant bit her on the eye. Common sense dictates that in order to bite Buggs on the eye, appellant must have restrained her liberty in
{¶ 12} The only other element required for a domestic violence conviction is that appellant and Buggs be considered household or family members pursuant to
{¶ 13} The testimony of Buggs was sufficient to find appellant guilty of the crimes charged. After a thorough review of the trial transcript, we see no significant discrepancies in the testimony. Appellant’s convictions were based on competent, credible evidence. Nothing in the record suggests that the jury lost its way or that a manifest miscarriage of justice occurred. Appellant’s convictions are not based on insufficient evidence, nor are they against the manifest weight of the evidence. Appellant’s assignments of error are overruled.
Allied Offenses
{¶ 15} Although appellant has not argued that he was convicted of allied offenses, the Ohio Supreme Court held in State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31-32, that failure to merge allied offenses constitutes plain error. Although the trial judge indicated at
{¶ 16} Our research shows, and the state concedes, that appellant was convicted and sentenced for allied offenses. State v. Wilson, Cuyahoga App. No. 91971, 2010-Ohio-1196, ¶95 (kidnapping and felonious assault are allied offenses); State v. Clark, Hamilton App. No. C-090573, 2010-Ohio-3962, ¶10 (kidnapping and abduction are allied). The evidence clearly demonstrated that appellant acted with a single animus; therefore, his convictions for allied offenses should have merged for sentencing. Because the trial court erred in failing to merge these offenses, appellant’s sentence is vacated, and this matter is hereby remanded for a resentencing where the state may elect which allied offenses it wishes to proceed under.
Conclusion
{¶ 17} Because the evidence demonstrated that appellant used force to restrain Buggs’s liberty and cause her serious physical injury, appellant’s convictions are not based on insufficient evidence and are not against the manifest weight of the evidence. The trial court erred, however, in sentencing appellant for multiple allied offenses.
It is ordered that appellant and appellee share the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
ANN DYKE, J., CONCURS;
PATRICIA ANN BLACKMON, P.J., DISSENTS (WITH SEPARATE OPINION)
{¶ 19} I concur with most of the majority opinion; however, I respectfully dissent as to the kidnapping and abduction counts. Abduction requires that one remove the victim from the place where she was found or restrain the victim under a risk of physical harm.
{¶ 20} Page 5 of the majority opinion states in pertinent part as follows: “The evidence presented at trial demonstrated that appellant chased Buggs into the apartment complex where she was seeking refuge and, when she refused to give him the car keys, he bit her on the eye, causing so much damage that she needed stitches and has a permanent scar.” Page 6 of the opinion goes on to state that Buggs did not testify that Studgions grabbed her or restrained her liberty in any way.
{¶ 21} Since the evidence fails to indicate that Studgions removed Buggs from where she was found or restrained her under risk of physical harm, or to inflict serious physical harm, the elements of kidnapping and abduction, therefore, have not been met. I would have reversed on these two counts.