STATE OF OHIO, Plаintiff-Appellee, v. MICHAEL J. WATSON, Defendant-Appellant.
CASE NO. CA2014-08-110
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
6/15/2015
[Cite as State v. Watson, 2015-Ohio-2321.]
HENDRICKSON, J.
Case No. 13CR29716. CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS.
Thomas G. Eagle, 3386 North State Route 123, Lebanon, Ohio 45036, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Michael Watson, appeals his conviction in the Warren County Court of Common Pleas for murder, aggravated robbery, kidnapping, and tampering with evidence. For the reasons discussed below, we affirm.
{¶ 2} Adam Patrick and Michael Geldrich arranged a plan to have a drug dealer post оne of his “dope boys” in Geldrich‘s home. Under this arrangement, Geldrich agreed to allow
{¶ 3} During the late evening hours of November 30, 2013 and into the early morning hours of December 1, 2013, a number of persons entered Geldrich‘s home, including appellant, Geldrich, Payne, Patrick, and Patrick‘s girlfriend, Kim Ferguson. Around 6:30 or 7:00 am, Patrick and Ferguson left Geldrich‘s home. At the time, Payne was asleep on Geldrich‘s couch and unharmed. Patrick stated that he left his black truck with Geldrich so that they could continue to use it to sell drugs.
{¶ 4} Geldrich and appellant then stepped out of Geldrich‘s home and discussed a plan tо rob Payne of his drugs and money. When they returned, Geldrich struck Payne on the chin with a table leg several times, placed a pillowcase over his head, and bound his arms and legs with duct tape. With his arms and legs bound, Geldrich forced Payne onto the floor and placed him in a chokehold while appellant kicked and punched Payne. Appellant then straddled Payne‘s back and questioned him about the location of the drugs and money. When Payne did not immediately respond, appellant slammed Payne‘s head into the floor approximately 10 times. Suspecting that Payne mаy have hidden the drugs in his anal cavity, Geldrich then pulled down Payne‘s pants and examined his anus with a dowel rod. Thereafter, Geldrich and appellant continued to brutally attack the restrained victim.
{¶ 5} Payne eventually passed out and became nonresponsive. Appellant then found Payne‘s wallet containing $260 and nine capsules of heroin and cocaine. While still in
{¶ 6} Geldrich went back inside and sat with appellant at the kitchen table where they noticed a still unresponsive Payne making a gurgling sound. After noticing this sound and Payne‘s prolonged unresponsiveness, Geldrich and appellant discussed whether they should take Payne to the hospitаl or whether they should dump his body near a local park. Ultimately, appellant and Geldrich decided to drop Payne off at the hospital. Geldrich and appellant then placed Payne in Patrick‘s black truck and drove him to the nearest hospital. When they arrived, appellant obtained a wheel chair and wheeled Payne into the emergency room where he informed medical staff that he “found [Payne] like this” and did not know him. Appellant then immediately fled the scene with Geldrich. Payne ultimately died as a result of the injuries he sustained during the attack. Payne‘s offiсial cause of death was listed as blunt force trauma to the head, homicide.1
{¶ 7} Thereafter, Geldrich and appellant returned to Geldrich‘s home where they cleaned up and removed their blood stained clothing and placed them into a trash bag, which they subsequently disposed of in a gas station dumpster near the Dayton Mall on their way to purchase more heroin.
{¶ 8} After Payne was dropped off at the emergency room, medical personnel notified the Middletown Police Department who sent Detective Dunham and Detective
{¶ 9} Appellant was subsequently indicted for one count of aggravated murder in violation of
{¶ 11} THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S MOTION TO SUPPRESS.
{¶ 12} In his first assignment of error, appellant argues the trial court erred when it denied his motion to suppress because there was no probable cause to arrest him.
{¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15. “When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual quеstions and evaluate witness credibility.” State v. Harsh, 12th Dist. Madison No. CA2013-07-025, 2014-Ohio-251, ¶ 9. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Gray at ¶ 15. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Harsh at ¶ 10.
{¶ 14} For a warrantless arrest to be lawful, the arresting officer must have probable cause that the individual had committed an offense. State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 25; State v. Voelker, 12th Dist. Warren No. CA2007-05-064, 2008-Ohio-1481, ¶ 10. Probable cause is viewed under an objective standard and is present where, under the facts and circumstances within an officer‘s knowledge, a reasonably prudent person would believe that the arrestee has committed a crime. State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 16. Information need not unequivocally establish the accused‘s involvement, but must only show a probability or substantial chance that he engaged in criminal activity. Voelker at ¶ 10. In making this determination, a court reviews the totality of facts and circumstances surrounding the arrest.
{¶ 15} In the present case, appellant was аrrested at Geldrich‘s home as detectives were executing a search warrant on the premises. Appellant argues the trial court erred in denying his motion to suppress because his arrest was without probable cause that he had committed any crime. In so doing, appellant alleges “[a]t worst, the evidence was that [appellant] had only brought an injured person to a hospital, maybe lied about prior contact with [the victim].” Appellant further explains that “[m]erely having information about a crime * * * is not probable cause that someone committed a crime.” As a result, appellant claims that his arrest was illegal and unconstitutional and all fruits of that illegal arrest are subject to suppression.
{¶ 16} After review, we find the surrounding facts and circumstances provided officers with probable cause to arrest appellant without a warrant. Here, the trial court held a hearing on appellant‘s motion to suppress and heard testimony from Detective Dunham and Detective Stewart. Detectives Dunham and Stewart testified about their initial investigation, which included the discovery of surveillance video at the hospitаl. Photograph and video evidence taken from those surveillance cameras captured Geldrich and appellant wheeling a severely injured Payne into the emergency room and then quickly returning to their vehicle and fleeing the scene. Detective Stewart testified that appellant informed the medical personnel that “he had found the boy this way and didn‘t know who he was.”
{¶ 17} After identifying the black truck as belonging to Patrick, Detective Dunham testified that he contacted Patrick and requested an interview with him. During the investigation, Patrick confirmed that he had left his black truck with Geldrich the night before and acknowledged that Geldrich and appellant had used it to take Payne to the hospital. Furthermore, Detective Dunham testified that Patrick informed him of interactions with Geldrich who stated that Payne was “fucked up.” In addition, Patrick also informed Detective
{¶ 18} Based on our review of the evidence, we find a reasonably prudent person would believe that appellant committed a crime and could therefore be subject to a warrantless arrest. Appellant‘s assertion that he merely had knowledge of a crime is without merit as the record defies appellant‘s contentions. The information available at the time showed, at the very least, a probability or substantial chance that appellant had engaged in the robbery and violent attack on Payne that ultimately led to Payne‘s death. Accordingly, the trial court did not err in denying appellant‘s motion to suppress. Appellant‘s first assignment of error is without merit.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE TRIAL COURT ERRED IN CONVICTING WATSON OF TAMPERING WITH EVIDENCE.
{¶ 21} In his second assignment of error, appellant argues that the state‘s evidence was not suffiсient to support his conviction for tampering with evidence.
{¶ 22} In reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. DeBorde, 12th Dist. Butler No. CA2013-04-058, 2014-Ohio-761, ¶ 10. Accordingly, “‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” State v. Dixon, 12th Dist. Clermont No. CA2007-01-012, 2007-Ohio-5189, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 23} Tampering with evidence is defined under
{¶ 24} The Ohio Supreme Court recently acknowledged that there are three elements to tampering with evidence: “(1) the knowledge of an official proceeding or investigation in progress or likely to be instituted; (2) the alteration, destruction, concealment, or removal of the potential evidence; and (3) the purpose of impairing the potential evidence‘s availability or value in such proceeding or investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 11.
{¶ 25} In Straley, two plainclothes narcotic detectives stopped the defendant‘s car for erratic driving. Id. at ¶ 2. Although the detectives noticed the defendant showed signs of alcohol impairment, they decided not to charge her. Id. However, the detectives would not let her drive home. Id. at ¶ 2-3. As the officers tried to arrange a ride for her, the defendant announced she had to urinate and subsequently “trotted 20 to 30 feet away to the corner of a building, saying, ‘I‘m not running; I just gotta рee. I don‘t care if you have to arrest me; I gotta pee.‘” Id. at ¶ 3. After the defendant relieved herself, one of the detectives walked to the area where she had gone and saw a clear cellophane baggie covered with urine containing what appeared to be crack cocaine. Id. at ¶ 4.
{¶ 26} The defendant was later convicted of possession of cocaine, trafficking in cocaine, and tampering with evidence, but the Second Appellate District reversed the tampering-with-evidence conviction. Id. at ¶ 7. The Supremе Court affirmed the appellate court‘s decision, holding that “[a] conviction for tampering with evidence pursuant to
There is nothing in the record to suggest that the officers were conducting or likely to conduct an investigation into trafficking or possession of cocaine when Straley discarded thе baggie. The baggie of cocaine did not relate to either an ongoing investigation of driving while under the influence of alcohol or driving without a license and had no evidentiary value to a likely investigation of public urination, and thus the record does not support a conviction for tampering with evidence.
{¶ 27} The facts present in this case are distinguishable from those in Straley and illustrate a textbook example of a tampering with evidence conviction. In the present case, Payne was found brutally assaulted after having been dropped off at the hospital by рreviously unknown persons. The state presented evidence that appellant had participated in the robbery and violent attack, which ultimately resulted in Payne‘s death. When appellant entered the hospital he was wearing bloodstained clothes that were later placed in a trash bag and disposed of at a gas station near the Dayton Mall.
{¶ 28} While appellant argues that his conviction was not based on sufficient testimony because he was not the specific focus of any pending or likely investigation at the time he tampered with the evidence, we find that argument to be unconvincing. The critical determination in our analysis is whether the evidence tampered with is connected to a pending or likely investigation. Here, the evidence shows that appellant was aware of Payne‘s condition at the time he dropped him off at the hospital. Despite his involvement in the attack, appellant told emergency personnel that he did not know the victim and “found him this way.” Thereafter, appellant immediately fled the scene and disposed of his bloody clothing. A rational trier of fact could find that appellant disposed of his bloody clothes to impair the investigation relevant to the violent attack on Payne. Accordingly, appellant‘s conviction for tampering with evidence is supported by sufficient evidence.
{¶ 29} In addition to his claim that his tampering with evidence conviction is not based
{¶ 30} Assignment of Error No. 3:
{¶ 31} THE TRIAL COURT ERRED IN CONVICTING AND SENTENCING DEFENDANT FOR KIDNAPPING.
{¶ 32} Appellant next alleges the trial court erred in sentencing him on both aggravated robbery and kidnapping because the offenses are allied offenses of similаr import. Appellant argues that the aggravated robbery and kidnapping convictions should merge because the amount of restraint involved was no more than necessary for the commission of the aggravated robbery, and therefore the conduct giving rise to the kidnapping conviction was merely incidental to the aggravated robbery conviction.
{¶ 33}
(A) Where the same conduct by defendant can be construed to constitute two or more аllied 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.
If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.
Id.; State v. Horna, 12th Dist. Butler No. CA2013-11-210, 2015-Ohio-1697, ¶ 15
{¶ 35} Appellant was convicted of both aggravated robbery in violation of
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;
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. Whitaker, 12th Dist. Preble No. CA2012-10-013, 2013-Ohio-4434, ¶ 67, quoting State v. Logan, 60 Ohio St.2d 126 (1979), syllabus.
{¶ 36} Although in some cases aggravated robbery and kidnapping can constitute
{¶ 37} Assignment of Error No. 4:
{¶ 38} THE TRIAL COURT ERRED IN SENTENCING WATSON.
{¶ 39} In his fourth assignment of error, appellant argues the trial court erred in its sentencing decision because it had already pre-determined his sentence prior to allowing appellant the right of allocution. Appellant also argues that his sentence is contrary to law because there was disparity between the sentence imposed on his co-defendant, Geldrich, and the sentence he received. Finally, appellant claims that his trial counsel was ineffective for failing to inform the trial court about the disparity between his sentence and thаt imposed on Geldrich.
{¶ 40} Appellant first argues the trial court erred by denying him the right to allocution
Sentence shall be imposed without unnecessary delay. Pending sentence, the court may commit the defendant or continue or alter the bail. At the time of imposing sentence, the court shall do all of the following:
Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.
{¶ 41} “The purpose of allocution is to permit the defendant to speak on his own behalf or present any information in mitigation of punishment.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶ 85. Although not considered a constitutional right, “the right of allocution is firmly rooted in the common-law tradition.” State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 18. This right is “both absolute and not subject to waiver due to a defendant‘s failure to object.” Id.
{¶ 42} Following the jury‘s verdict, the trial court proceeded directly to sentencing and properly provided appellant an opportunity to exercise his allocution rights and address the court, which he did. On appeal, appellant argues that his right to allocution was nothing more than an “empty ritual” because the trial court had already determined the length of his sentence prior to his exercise of that right. As support, appellant cites to a statement made by the trial court in denying his request for a PSI:
Okay. Well, I don‘t see what the purpose of a pre-sentence investigation would serve. He‘s got mandatory time he has to serve, a mandatory life sentence on the murder charge. There‘s nothing a pre-sentence investigation is going to change on that. Quite frankly, I don‘t want to have to go through bringing this family and all these people who have shown an interest in this case back on a different day.
I‘ve had five days to think about this as we‘ve proceeded. I don‘t need any more time to think about what I‘m going to do. I‘m basically -- well, I know what I‘m going to do whether it‘s now or in five weeks.
{¶ 43} After review, we find appellant‘s assignment of error is without merit. Appellant was provided an opportunity to exercise his right to allocution. While appellant claims that his right of allocution was nothing more than an “empty ritual,” there is no еvidence in the record to support this assertion. The language that appellant refers to in his appellate brief does not support his contentions, as the trial court was plainly referring to the denial of appellant‘s request for a PSI. Furthermore, the trial court did not impose sentence or enter any judgment entry into the record prior to allocution. In fact, the trial court‘s sentencing decision even included a discussion about the statements made by appellant during allocution. In conclusion, appellant was not denied his right to allocution аnd was not prejudiced. See State v. Frye, 125 Ohio St.3d 163, 2010-Ohio-1017 (the Ohio Supreme Court declined to reverse a trial court‘s sentencing decision where the trial court imposed sentence prior to allocution, but permitted the defendant to address the court and the trial court did not subsequently modify its entry). Accordingly, we find no error in the trial court‘s decision with respect to appellant‘s allocution rights.
{¶ 44} Next, appellant argues that his sentence is contrary to law because his prison term is longer than the term imposed on his co-defendant, Geldrich. Appellant argues that his 23-year-to-life sentence is disproportionate to Geldrich‘s 22-years-to-life sentence based in part on the fact that Geldirch was convicted of aggravated murder, as opposed to his conviction for the lesser included offense of murder.3 Appellant complains that this disparate treatment essentially amounts to an impermissible “trial tax.”
{¶ 46} While
{¶ 47} After review, we find appellant‘s prison term is not contrary to law. Although appellant‘s co-defendant, Geldrich, received a shorter possible prison term than appellant, that fact alone does not require a finding that the trial court erred in its sentencing decision. See State v. Lee, 12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 13 (“[a] sentence is not contrary to law because the trial court failed to impose a sentence that is the same as another offender who committed similar conduct“); State v. Israel, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 73. In this case, the record reflects the trial court
{¶ 48} Finally, appellant again adds that his trial counsel was ineffective for failing to raise this issue at his sentencing hearing. In other words, appellant claims that his trial counsel shоuld have informed the trial court that his co-defendant had received a 22-year-to-life prison term. However, as noted above, the trial court was not obligated to impose identical sentences and appellant‘s sentence was not contrary to law. Accordingly, appellant‘s fourth assignment of error is overruled.
{¶ 49} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.