STATE OF OHIO v. ANTROINE WELLS
No. 109787
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 29, 2021
2021-Ohio-2585
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: July 29, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-637865-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kelly N. Mason, Eben McNair, and Stephanie Farah, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, J.:
{1} Defendant-appellant, Antroine Wells (“Wells“), appeals from his convictions and sentence. He raises the following assignments of error for review:
- Appellant‘s convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.
The convictions were against the manifest weight of the evidence. - Appellant‘s constitutional rights were violated when the charges were not dismissed when he was not afforded a speedy trial.
- Appellant‘s sentence is contrary to law because the record does not support the imposition of consecutive sentences.
- The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant‘s state and federal rights to due process and protections against double jeopardy.
{2} After careful review of the record and relevant case law, we affirm Wells‘s convictions and sentence. The matter is remanded for the court to issue a nunc pro tunc sentencing journal entry to reflect the imposition of consecutive sentences.
I. Procedural and Factual History
{3} On February 20, 2018, Wells was named in a six-count indictment in Cuyahoga C.P. No. CR-18-626004-A, charging him with rape in violation of
{5} On March 14, 2019, Wells was reindicted in Cuyahoga C.P. No. CR-19-637865-A. The 12-count indictment charged Wells with rape in violation of
{6} The new indictment was filed by the state to account for alleged acts committed against Jane Doe and a second victim, T.L., during the time period Wells avoided custody in Case No. CR-18-626004-A. Upon the filing of the new criminal indictment, the state dismissed Case No. CR-18-626004-A without prejudice.
{7} In March 2020, the matter proceeded to a jury trial on Counts 1-6 and 9-12 of the indictment. Counts 7 and 8, the only charges pertaining to T.L., were bifurcated and were to be addressed at a later date.
{9} On January 29, 2018, Jane Doe arrived home from work and noticed the smell of cigar smoke. Jane Doe testified that the smell of the cigar smoke caused her to believe that Wells had been inside her home. When Jane Doe went upstairs to ensure her home was secure, Wells suddenly came out of a bedroom and attacked her. According to Jane Doe, Wells then pinned her down and vaginally raped her. Jane Doe testified that she began “screaming telling him to stop, don‘t do it.” (Tr. 222.)
{10} After the alleged sexual assault occurred, Jane Doe took a shower and went to a previously scheduled doctor‘s appointment. At that time, Jane Doe reported the sexual assault to her doctor. Thereafter, Jane Doe went to the emergency room for examination and the completion of a rape kit. Jane Doe also filed a formal report with the city of Bedford Police Department. Jane Doe testified that once she reported the criminal incident to the police, she began receiving concerning phone calls and text messages from Wells.
{11} In November 2018, Wells contacted Jane Doe through a social-media platform using the alias “Chris.” Chris offered to pay Jane Doe money for a nude photograph. Jane Doe accepted the offer and scheduled a time for Chris to come to her home to complete the agreed upon transaction. At the time scheduled for Chris‘s
I, [Jane Doe], would like to recant my statement of accusing Antroine Wells of rape, kidnapping, theft, and burglary. That statement is 100 percent false. After reflecting on the incident I am admitting I was wrong. I made an honest mistake. I only told the detectives those things because I was afraid and nothing was done. I thought he would hurt me because of how I hurt him, but he didn‘t, even what I accused him of. But the truth is he did not rape me nor break into my home. I truly and sincerely apologize to everyone involved in this matter. It was an honest mistake that I regret.
{12} Jane Doe reiterated that she did not write the recantation letter and that Wells did commit the offenses alleged in the indictment. Jane Doe explained that she did not immediately notify the police that Wells forced her to sign the recantation letter because “he said if I called the police and tell them that he was there, he would find out.” (Tr. 242.)
{13} Detective Shawn Klubnik (“Det. Klubnik“) of the city of Bedford Police Department testified that he was assigned to investigate the sexual assault allegations levied against Wells. In the course of his investigation, Det. Klubnik interviewed Jane Doe, photographed her injuries, reviewed certain text messages sent to Jane Doe‘s cell phone, and collected relevant medical records and physical
{14} At the conclusion of the state‘s case, defense counsel moved the court for a judgment of acquittal pursuant to Crim.R. 29. The trial court denied the motion and the defense presented its case.
{15} Wells testified on his own behalf. Wells confirmed that he was romantically involved with Jane Doe for several years. He testified that he moved out of the residence he shared with Jane Doe in the beginning of 2018 due to her infidelity. Although their relationship had ended, Wells explained that he continued to have intercourse with Jane Doe in exchange for money. With respect to the incident alleged to have occurred on January 29, 2018, Wells maintained that he and Jane Doe engaged in consensual intercourse. He testified that Jane Doe was upset when he declined to give her money on this occasion. According to Wells, Jane Doe became increasingly irate when he finally confessed to her that he had more
{16} Wells testified that after the argument in January 2018, he did not have contact with Jane Doe until they met at his uncle‘s house in May 2018. Wells stated that he and Jane Doe resolved their differences and engaged in sexual intercourse. Wells testified that Jane Doe also invited him to her house on November 27, 2018. He explained that he and Jane Doe had reached an agreement via a text-message conversation whereby Jane Doe agreed to provide Wells nude photographs of herself in exchange for $500 or $600. Defense counsel introduced “screenshots” of the alleged electronic communications. Wells denied communicating with Jane Doe through a social-media platform. He further denied communicating with Jane under the alias, Chris.
{17} Regarding the meeting on November 27, 2018, Wells testified that he and Jane Doe engaged in consensual sex and that once again, she became upset when he did not have sufficient money to pay her. However, he maintained that he did not possess a stun gun, did not harm Jane Doe in any way, and did not force her to sign a recantation letter that day. Wells explained that he and Jane Doe had previously agreed to draft the recantation letter when they reconciled earlier that year. Thus, he testified that Jane Doe signed the recantation letter before the November 2018 interaction and that he carried a copy of the letter in his pocket in order to prove, if necessary, that her allegations were false.
{19} At the conclusion of trial, the jury found Wells guilty of intimidation of a crime victim or witness, retaliation, and tampering with evidence as charged in Counts 10, 11, and 12 of the indictment. Wells was found not guilty of the remaining counts pertaining to Jane Doe.
{20} Prior to trial on Counts 7 and 8 of the indictment, the state agreed to dismiss Count 8 of the indictment and amend Count 7 to a charge of attempted robbery in exchange for a plea of guilty. In accordance with the plea agreement, Wells withdrew his former plea of not guilty and entered a plea of guilty to attempted robbery in violation of
{21} In May 2020, the trial court sentenced Wells to 18 months in prison on Count 7, 36 months in prison on Count 10, 24 months in prison on Count 11, and 24 months in prison on Count 12. The trial court ordered the sentences imposed on Counts 7, 10, and 11 to run consecutively for an aggregate 78-month prison term.
{22} Wells now appeals from his convictions and sentence.
A. Sufficiency of the Evidence
{23} In his first assignment of error, Wells argues that the trial court erred in denying his Crim.R. 29 motion for acquittal because his convictions were not supported by sufficient evidence.
{24} Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient to sustain a conviction of such offense or offenses.” A sufficiency challenge essentially argues that the evidence presented was inadequate to support the jury verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{25} It is well established that the elements of an offense may be proven by direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a matter within the witness‘s personal knowledge such that the trier of fact is not required to draw an inference from the evidence to the proposition that it is offered to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, 13. Circumstantial evidence, on the other hand, is evidence that requires “the drawing of inferences that are reasonably permitted by the evidence.” Id. See also
{26} Circumstantial and direct evidence are of equal evidentiary value. State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. “Although there are obvious differences between direct and circumstantial evidence, those differences are irrelevant to the probative value of the evidence.” Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some cases, circumstantial evidence may be “more certain, satisfying and persuasive than direct evidence.” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
{27} In this case, Wells was convicted of retaliation in violation of
{28} After careful review of the record, we find a reasonable trier of fact could conclude beyond a reasonable doubt that Wells purposely retaliated against Jane Doe by force and unlawful threat of harm because she pursued criminal charges against him following the incident on January 29, 2018. The evidence presented at trial demonstrated that in response to Jane Doe‘s allegations of rape,
{29} Wells was also convicted of intimidation of a crime victim or witness in violation of
(B) No person, knowingly and by force or by unlawful threat of harm to any person or property or by unlawful threat to commit any offense or calumny against any person, shall attempt to influence, intimidate, or hinder any of the following persons:
(1) The victim of a crime * * * in the filing or prosecution of criminal charges * * *.
{30} The statute “requires only an ‘attempt to influence, intimidate, or hinder,’ and it is not required that the victim actually feel intimidated.” State v. Kilton, 8th Dist. Cuyahoga No. 106864, 2019-Ohio-87, ¶ 8, citing State v. Serrano, 2016-Ohio-4691, 69 N.E.3d 87, ¶ 44 (8th Dist.). “The term ‘threat’ represents a range of statements or conduct intended to impart a feeling of apprehension in the victim, whether of bodily harm, property destruction, or lawful harm, such as exposing the victim‘s own misconduct.” State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶ 39. “An ‘unlawful threat of harm’ requires more than
{31} Our review reflects that the state presented sufficient evidence in support of Wells‘s intimidation of a crime victim conviction. In this case, the evidence shows that Wells arrived at the victim‘s home and forced her to sign the recantation letter under the threat of bodily harm. Once the letter was signed, Wells advised Jane Doe that he would find out if she contacted the police about the circumstances surrounding the recantation letter. As stated,
{32} Finally, Wells was convicted of tampering with evidence in violation of
No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following: * * * (2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation,
or with purpose to corrupt the outcome of any such proceeding or investigation.
{33} In this case, Jane Doe testified that Wells arrived at her home with a typed recantation letter that she was forced to sign. Subsequently, the letter was mailed to Det. Klubnik, unquestionably in an effort to mislead the detective and to corrupt the outcome of the criminal investigation. The substance of the recantation letter demonstrated Wells‘s knowledge of the ongoing criminal investigation. Moreover, although Wells‘s fingerprints were not recovered on the recantation letter that arrived at the city of Bedford Police Department, we find there was circumstantial evidence that Wells made the document knowing it to be false. Here, Jane Doe confirmed that she did not draft the recantation letter and that the information contained therein was not true. In addition, a copy of the recantation letter was found in Wells‘s possession at the time of his arrest. Viewing the evidence in a light most favorable to the prosecution, we find there was sufficient evidence to support the finding of guilt on the offense of tampering with evidence.
{34} Within this assignment of error, Wells further contends that each of his convictions were supported by insufficient evidence because Jane Doe‘s testimony was self-serving and lacked credibility. We note, however, that “in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state‘s witnesses testified truthfully and determines if that testimony satisfies each element of the crime.” State v. Bankston, 10th Dist. Franklin No. 08AP-668, 2009-Ohio-754
{35} Wells‘s first assignment of error is overruled.
B. Manifest Weight of the Evidence
{36} In his second assignment of error, Wells argues that his convictions were against the manifest weight of the evidence.
{37} A manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “A conviction should be reversed as against the manifest weight of the evidence only in the most ‘exceptional case in which the evidence weighs heavily against the conviction.‘” State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.
{38} In challenging the weight of the evidence supporting his convictions, Wells argues that Jane Doe‘s testimony was not credible as “reflected in the jury‘s verdict of not guilty on Counts 1, 2, 3, 4, 5, 6, and 9.” Wells suggests that his version of the events was more credible and that the evidence demonstrates Jane Doe voluntarily met with him and understood she was communicating with him, and not
{39} Based on the record before this court, we cannot say that in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered. In this case, Jane Doe was thoroughly cross-examined by defense counsel regarding her version of the incidents occurring in January and November of 2018. She was questioned at length regarding her alleged interaction with “Chris” and the basis of her decision to not contact the police after Wells forced her to sign the recantation letter. She reiterated her position that she did not knowingly contact or exchange messages with Wells through text messages or on a social-media platform between January 29, 2018 and November 27, 2018. (Tr. 265; 296.) She explained that she did not know Wells was using an alias during the electronic communications until he arrived at her home at the time she had arranged to meet Chris. In addition, Jane Doe testified during her direct examination that she did not immediately contact the police following the November 2018 incident because Wells had warned her that he would know if she contacted the police. (Tr. 243.)
{40} Under these circumstances, we find the jury was presented with all relevant evidence and was free to find Jane Doe‘s version of the events occurring on
*** juries can reach inconsistent verdicts for any number of reasons, including mistake, compromise, and leniency. * * * [I]t would be incongruous for a defendant to accept the benefits of an inconsistent verdict without also being required to accept the burden of such verdicts.
State v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-1626, ¶ 10. Consequently, “courts have consistently rejected the argument that inconsistent verdicts would render a defendant‘s conviction against the manifest weight of the evidence.” State v. Jones, 8th Dist. Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 33, citing State v. Norman, 10th Dist. Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14; State v. Gravelle, 6th Dist. Huron No. H-07-010, 2009-Ohio-1533, ¶ 76-77; State v. Parker, 8th Dist. Cuyahoga No. 90298, 2008-Ohio-3538, ¶ 22-25; and State v. King, 5th Dist. Guernsey No. 09 CA 000019, 2010-Ohio-2402, ¶ 32-34.
{41} In this case, the jury‘s finding of guilt on Counts 10, 11, and 12 related to a series of acts that transpired on a date that was separate and distinct from the offenses Wells was found not guilty of committing. The trier of fact was free to
{42} Wells‘s second assignment of error is overruled.
C. Speedy Trial
{43} In his third assignment of error, Wells argues he was not afforded a speedy trial in violation of his statutory and constitutional rights.
{44} As an initial matter, we note that Wells filed a pro se “motion to dismiss for violation of constitutional rights/amendments,” wherein he claimed that he was entitled to a speedy trial. The record reflects that Wells was represented by appointed counsel at the time he filed his pro se motion. Hybrid representation is not allowed; therefore, the trial court was unable to consider his motion. State v. Davis, 8th Dist. Cuyahoga No. 105129, 2017-Ohio-8479, ¶ 18 (a defendant has the right to counsel or the right to act pro se; however, a defendant does not have the right to both, simultaneously). Thus, Wells‘s failure to properly file a motion to dismiss on speedy trial grounds prior to trial and pursuant to
{46} The right to a speedy trial is a fundamental right guaranteed by the
{47} When reviewing a speedy trial question, an appellate court must count the number of delays chargeable to each side and then determine whether the number of days not tolled exceeded the time limits under
{48} Pursuant to
{49} The statutory speedy-trial period begins to run on the date the defendant is arrested, although the date of arrest is not counted when calculating speedy-trial time. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 44. Once the statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to
{50} Speedy-trial time is tolled by certain events delineated in
{51} On appeal, Wells contends that because he was not brought to trial until approximately 754 days after his initial arrest, he has established a prima facie case for discharge. We agree; but find the state has demonstrated that substantial tolling events operated to extend Wells‘s speedy trial time.
{52} In this case, Wells was arrested on February 13, 2018. When he failed to appear before the court, a capias was issued on March 6, 2018. Wells, however, was not brought into custody until February 8, 2019, nearly 11 months later. Excluding the date of arrest, approximately 20 untolled calendar days expired during this lengthy period of time. See
{53} After Wells was brought into custody, he was arraigned on February 12, 2019. The following day, defense counsel filed a request for discovery, bill of particulars, and notice of specific intention to use evidence. The state responded to Wells‘s discovery request on March 4, 2019. Approximately five untolled calendar days expired during this period of time. See Cleveland v. Smerglia, 8th Dist. Cuyahoga No. 108745, 2020-Ohio-3181, ¶ 19 (“A discovery motion tolls the speedy trial time.“).
{54} On March 5, 2019, the state sought a continuance to file a new indictment against Wells. On March 14, 2019, Wells was reindicted in Case No. CR-19-637865-A, and he was arraigned on March 20, 2019. Approximately 21 untolled calendar days expired until defense counsel filed a request for discovery on March 25, 2019.
{55} The state responded to the discovery request on April 30, 2019. However, while the discovery request was outstanding, Wells filed separate motions to continue on April 2, 2019, and April 9, 2019. Thereafter, Wells filed additional motions to continue on April 30, 2019, May 14, 2019, June 3, 2019, June 17, 2019, and June 25, 2019. On July 3, 2019, Wells filed a motion to remove appointed counsel due to ineffective assistance of counsel. On July 8, 2019, defense counsel withdrew as counsel and new counsel was appointed. No speedy trial days accumulated during this time period. See
{57} On July 18, 2019, the matter was continued until August 1, 2019, at the request of Wells. On August 1, 2019, the matter was continued until August 15, 2019, at the request of Wells. On August 15, 2019, the matter was continued until September 5, 2019, at the request of Wells. On September 5, 2019, the matter was continued until September 16, 2019, at the request of Wells. No speedy trial days accumulated during this time period. See
{58} On September 16, 2019, the matter was set for trial to begin on September 23, 2019. However, on September 23, 2019, the trial was continued until December 2, 2019, at the request of Wells due to defense counsel‘s scheduling conflict. Approximately eight untolled calendar days ran during this period of time. See
{59} On December 2, 2019, the trial was continued until January 21, 2020, at the request of Wells. A pretrial was held on January 10, 2020. At the request of Wells, an additional pretrial was scheduled for January 27, 2020, and trial was continued until for March 9, 2020. Wells‘s jury trial began on March 9, 2020. No speedy trial days accumulated during this time period. See
{60} Based on the foregoing, it is evident that the delay in the proceedings was substantially caused by Wells‘s avoidance of his capias and the numerous motions filed at the request of Wells. Even without addressing the ambiguity in this
{61} Wells also argues his constitutional speedy trial rights were violated in this matter. Citing the significant length of time between his arrest and trial, Wells contends that the reasons for the delay are not clear and prejudiced his ability to present an adequate defense at trial.
{62} In determining whether a constitutional speedy trial violation exists, we balance four factors “the length of the delay, the reason for the delay, the accused‘s assertion of his or her right to a speedy trial, and the prejudice to the accused as a result of the delay.” Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. This court has explained “[t]he first factor, the length of the delay, is a ‘triggering mechanism,’ determining the necessity of inquiry into the other factors.” State v. Robinson, 8th Dist. Cuyahoga No. 105243, 2017-Ohio-6895, ¶ 9, quoting State v. Triplett, 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (1997), citing Barker at 530. The defendant must make a threshold showing of a “presumptively prejudicial” delay to trigger an analysis of the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Post-accusation delay approaching one year is generally found to be presumptively prejudicial. Doggett at fn. 1.
{64} With regard to the third factor, we find that a properly framed challenge to Wells‘s constitutional right to a speedy trial was not filed on Wells‘s behalf while he was represented by competent counsel. And, Wells has not directed this court to a portion of the record to suggest otherwise. “‘The constitutional right to a speedy trial was not intended as a shield to the guilty, the protection of which might be invoked by sitting silently back and allowing the prosecution to believe that the accused is acquiescing in the delay.‘” Id. at ¶ 12, quoting Partsch v. Haskins, 175 Ohio St. 139, 140, 191 N.E.2d 922 (1963).
{65} Finally, with regard to the fourth factor, we see no evidence of prejudice to Wells. The Ohio Supreme Court has explained that the prejudice factor in the analysis “should be assessed in the light of the interests of defendants[,] which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. The three interests are “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” State v. Long, Slip Opinion No. 2020-Ohio-5363, ¶ 22. The third interest – the impact of the delay on the ability of
{66} In this case, Wells argues that he was prejudiced by the delay because he lacked “resources outside of his jail” and was unable to “fully assist in his defense” during the time period he remained incarcerated. However, Wells does not identify how his pretrial incarceration or delay in trial hindered his ability to gather evidence, contact witnesses, or prepare for his defense. His argument on appeal merely references “potentially” exculpatory evidence. Thus, Wells‘s asserted difficulty in preparing a defense is hypothetical and relies on nothing more than mere speculation, which is “not sufficient to show prejudice.” State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 24 (finding defendant‘s speculation witnesses may have moved without any knowledge to verify, or even suggest, the witnesses moved, insufficient to show prejudice). Accordingly, we find Wells has failed to show any reasonable prejudice sufficient to suggest that this Barker factor should weigh in his favor.
{67} Based on our examination of the relevant Barker factors, we cannot conclude Wells‘s constitutional right to a speedy trial was violated. Wells‘s third assignment of error is overruled.
D. Consecutive Sentences
{68} In his fourth assignment of error, Wells argues the trial court erred by imposing consecutive sentences.
{70}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{72} In this case, the trial court made the following findings when imposing consecutive sentences:
The Court has considered the seriousness and recidivism factors and the purposes and principles of our sentencing statutes. [The prosecutor] in her colloquy indicated several factors that are more serious. Mr. Wells was on community control [when these] offenses occurred. It should be noted that even though this is one case number, these are basically two different cases, two separate incidents involving two separate women and the justice system itself. Tampering with evidence and retaliation and intimidation of a crime victim are all crimes not just against an individual, but against the justice system.
Mr. Wells, so you were on probation in Case 599179. I find you to be in violation of your probation. You were capias on that. I am terminating your community control or probation in that case.
* * *
You do have a history of violence. Two of your prior cases were of a violent nature. Robbery, the base count in this case was a crime of violence. I‘ve considered all those factors. * * *
I do note that in imposing consecutive sentences that a consecutive term is necessary to punish the defendant here and to protect the public. Mr. Wells has – this is his, I believe fifth case. He did commit this crime against these two women while on community control sanction, and I do find that his criminal history is necessary to protect the public and that six and a half years is not disproportionate to the course of conduct here.
(Tr. 663-664.)
{73} On appeal, Wells does not dispute that the trial court made the first and third findings for imposing consecutive sentences under
{74} After careful review, we agree that the trial court did not make an explicit, specific finding that the imposition of a consecutive sentence was not disproportionate to the danger Wells poses to the public. However, the trial court‘s statements during the sentencing hearing, when viewed in their entirety, clearly indicate that the trial court considered proportionality with respect to both the seriousness of Wells‘s conduct and the danger he posed to the public. Here, the trial
{75} Wells further contends that the imposition of consecutive sentences was not supported by the record. Specifically, Wells asserts that consecutive sentences “are in excess of what is necessary to incapacitate [him], deter him from committing future crimes and to rehabilitate him.” In support of this argument,
{76} After reviewing the record, we cannot say that the record clearly and convincingly does not support the trial court‘s findings under
{77} Because the trial court made the requisite findings during the sentencing hearing under
{78} Finally, Wells argues that the trial court‘s imposition of consecutive sentences was contrary to “the felony sentencing guidelines,”
{79} Pursuant to
{80} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{81} A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or the trial court failed to consider the purposes and principles of felony sentencing set forth in
{82} Although the trial court must consider the principles and purposes of sentencing, as well as any mitigating factors, the court is not required to use particular language nor make specific findings on the record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. In fact, unless the defendant affirmatively shows otherwise, it is presumed that the trial court considered the relevant sentencing factors under
{84} Wells‘s fourth assignment of error is overruled.
{85} The record reveals, however, that the trial court failed to incorporate the consecutive sentencing findings that it made at the sentencing hearing into the
E. Allied Offenses of Similar Import
{86} In his fifth assignment of error, Wells argues the trial court erred by failing to merge all allied offenses of similar import, and by imposing separate sentences for allied offenses that violated his state and federal rights to due process and protections against double jeopardy.
{87} The Double Jeopardy Clauses of the
{88} In Ohio, this constitutional protection is codified in
{89} Pursuant to
[w]here 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.
{90} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{91} Two or more offenses are of dissimilar import within the meaning of
{92} When determining whether two offenses are allied offenses of similar import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{93} On appeal, Wells argues that “the course of events demonstrates that a single act and animus resulted in the offenses charged in Counts 10 and 11 for intimidation and retaliation.” Wells contends that the offenses occurred during the same incident and related to Jane Doe‘s signing of the recantation letter that was sent to the police.
{94} Wells did not raise the issue of merger at the time of sentencing. Where a defendant fails to raise the issue of allied offenses in the trial court, he forfeits all but plain error review on appeal. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Under the plain error standard, an error is not reversible unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. Id.; see also
{96} In contrast, the conduct supporting Wells‘s conviction for intimidation was done with the separate motivation, or animus, to influence or hinder Jane Doe from prosecuting the criminal charges. After Wells completed the retaliation offense, he facilitated the criminal intimidation by knowingly forcing Jane Doe, under the unlawful threat of harm, to sign a typed recantation letter. The conduct relating to the recantation letter was committed separately from acts constituting the retaliation charge, and resulted in a separate, identifiable harm to Jane Doe. The recantation letter was intended to impair Jane Doe‘s ability to pursue a criminal prosecution against Wells for past conduct, while Wells‘s calculated use of a social-media platform under false pretenses and his subsequent threats of harm
{97} Wells‘s fifth assignment of error is overruled.
{98} Judgment affirmed and case remanded for nunc pro tunc correction of the sentencing entry.
It is ordered that appellee recover from appellant 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 is terminated. Case remanded for nunc pro tunc correction of the sentencing entry.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR