State v. WhiteState v. White
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING
RELEASED: May 27, 2010
JOURNALIZED:
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
MELODY J. STEWART, P.J.:
I
{¶ 2} White raises two arguments in support of his contention that the state failed to offer sufficient evidence to support a guilty verdict: (1) the court erred by finding that a plastic BB/pellet gun was a deadly weapon and (2) the state failed to establish the “serious physical harm” element for felonious assault and aggravated robbery.
A
{¶ 3} Questions concerning the sufficiency of evidence are addressed with a highly deferential standard of review: we view the evidence in a light
B
{¶ 4} One aggravated burglary count [
{¶ 5} Although it is not a firearm, a BB gun can be a deadly weapon if the BB is expelled at a sufficient rate of speed. State v. Brown (1995), 101 Ohio App.3d 784, 788, 656 N.E.2d 741. Moreover, the courts agree that regardless of whether a BB or pellet is powerful enough to cause death, a BB gun can be a deadly weapon because the body of the gun itself can be used to bludgeon. State v. Mills (1991), 73 Ohio App.3d 27, 33, 595 N.E.2d 1045;
{¶ 6} The trial testimony showed that White‘s brother, Aauston, had fathered a child with one of the victims. Earlier in the day in which the offenses were committed, Aauston had a confrontation with the child‘s mother that ended when she threw a water bottle at him and cut him below his eye. The next morning, at 3:00 a.m., White, Aauston, and two companions broke down the front door to the mother‘s house and entered. Aauston and the two companions ran upstairs and kicked open a bedroom door. The mother‘s father was in that room, and the three men demanded that he give them money. When he refused, they pistol-whipped him on the face and back of his head. White punched the mother‘s sister and others struck her in the back of the head and kicked her in the sides. Aauston took the sister‘s cell phone, her car keys and some jewelry, while one of the companions pointed a gun at the mother and her child. White told the mother that “you all brought this on yourself.” The four men left in two vehicles: the truck they arrived in and the sister‘s car.
{¶ 7} A police detective who responded to the scene testified that a pellet or BB gun had been recovered from the scene. The detective stated that the gun “looked similar” to an actual firearm, but that it was made of “hard plastic.”
C
{¶ 9} White next argues that the state failed to establish that the sister suffered “serious physical harm” as an element of felonious assault and aggravated robbery.
{¶ 10} Serious physical harm is defined in
{¶ 11} The sister testified that she had been struck in the face and kicked in the ribs. She was transported by ambulance to a hospital and had a CT scan and x-rays, and she received a shot of morphine for the pain. When asked to describe on a ten-scale the amount of pain she was feeling after the attack, she said “I was about an eight or nine[.]”
{¶ 12} We believe that the kind of pain described by the victim — with the victim‘s subjective, numerical assessment of the pain as being close to unbearable and requiring the use of a potent pain killing medication like morphine — was sufficient to allow a rational trier of fact to conclude that the pain qualified as “acute pain.” Moreover, the victim testified that she was in pain for “about a week and a half.” This description of the sister‘s suffering is very similar to that described in State v. Miller, 8th Dist. No. 80999, 2003-Ohio-164, in which we found that the state established acute pain with evidence that the victim had been hit in the head several times with a gun and kicked in the jaw so hard that she was unable to eat solid food for several
II
{¶ 13} White next argues that his convictions were against the manifest weight of the evidence. In doing so, however, he has simply restated his arguments set forth in part I that the BB gun was not a deadly weapon and that the sister did not suffer serious physical harm. We can summarily reject an argument on the manifest weight of the evidence when it merely reincorporates an earlier argument on the sufficiency of the evidence. See State v. Smith, 8th Dist. No. 88689, 2007-Ohio-3908, at ¶14; State v. Judd, 8th Dist. No. 89278, 2007-Ohio-6811, at ¶46.
{¶ 14} The only new argument offered within this assignment of error is White‘s claim that his conviction for grand theft motor vehicle is against the manifest weight of the evidence because “[a]ppellant was not involved in the taking or use of that vehicle, as agreed by all parties in Closing Arguments.” Appellant‘s Brief at 11.
{¶ 15} When considering whether a judgment is against the manifest weight of the evidence in a trial to the court, we will not reverse a conviction where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 59, 526 N.E.2d 304. We must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trial court “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Because the trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest[,]” State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548, our discretionary power to grant a new trial can be exercised only in exceptional cases where the evidence weighs heavily against the conviction.
{¶ 16} While it is true that White did not drive away in the stolen vehicle, the facts showing his participation in the events leading to the theft were compelling enough to establish his complicity in the theft. White participated in breaking into the house and assaulting the victims, with the sister describing him as moving back and forth between assaulting her and her father. White did not personally demand that the sister hand over her car keys, but he was present during the ongoing assault. The assault itself had clearly been planned by White and his companions, as shown by his remark that “you all brought this on yourself.” These facts could have led the court to believe that the theft of the vehicle had been orchestrated as part of an overall
III
{¶ 17} For his third assignment of error, White complains that although the court ran all of his sentences concurrently, the court committed plain error by sentencing him on separate counts of aggravated burglary, felonious assault, and aggravated robbery, which were charged under different subsections of the same statutes but were allied offenses of similar import because they arose from the same conduct and animus. He likewise argues that his kidnapping sentences should merge because they were committed with the same animus as the other charged offenses.
A
{¶ 18} As a matter of first principles, an analysis of allied offenses requires two considerations: the offender‘s right not to be placed twice in jeopardy for the same offense and the legislature‘s right to define the punishment for a stated offense. The interaction between these two considerations determines whether offenses are allied.
1
{¶ 19} Among the three kinds of prohibitions contained within the Double Jeopardy Clause of the United States Constitution is a ban on multiple
{¶ 20} Even though conduct by an accused could constitutionally give rise to different offenses, the legislature nonetheless has the authority to define and fix the punishment for a crime. Ex Parte United States (1916), 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129; Cleveland v. Scott (1983), 8 Ohio App.3d 358, 359, 457 N.E.2d 351. So while convictions for multiple offenses can constitutionally result from the same conduct, the legislature has the authority to prescribe the kind of punishment for those offenses so allied in nature as to constitute, for all intents and purposes, the commission of a single offense.
2
{¶ 22} “(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.
{¶ 23} “(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.”
{¶ 24} Double jeopardy prevents a court from “prescribing greater punishment than the legislature intended,” Missouri v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535, so the courts must look to the legislative intent to determine what the General Assembly intended to accomplish with
{¶ 25} The Committee Comment to this section shows that
{¶ 26} “If the General Assembly, by the enactment of [section]
{¶ 27} Likewise, in State v. Logan (1979), 60 Ohio St.2d 126, 131, 397 N.E.2d 1345, the supreme court stated:
{¶ 28} “It is apparent that * * * [
3
{¶ 30} These principles have led to the evolution of two different lines of analysis for reviewing questions of allied offenses of similar import. The first line of analysis follows the Blockburger test: to determine whether two offenses are the same for double jeopardy purposes, we look to see “whether each offense requires proof of an element that the other does not.” State v. Rance, 85 Ohio St.3d 632, 634-635, citing Blockburger, 284 U.S. at 299.
{¶ 31} In Brown, the supreme court stated:
4
{¶ 33} The second line of analysis was recently set forth in Brown and addressed whether offenses committed by alternative means under the same criminal code section constituted the same criminal offense for purposes of
{¶ 34} The supreme court reached this conclusion by noting that the General Assembly had intended to protect certain “societal interests” in the way it defined different criminal offenses. By way of example, it offered the offenses of theft and aggravated burglary — offenses that are often charged together when an accused breaks into an occupied structure and steals something. Although the aggravated burglary might be thought to be
{¶ 35} Applying that standard, the supreme court held that these same societal concerns were not present in Brown when the state charged felonious assault under separate subsections of the statute. The supreme court held that the different subsections of the felonious assault statute served the same interest: “preventing harm to persons.” Id. at ¶39. The supreme court made it clear, however, that this line of analysis is still subject to the
{¶ 36} Even though the court imposed White‘s sentences concurrently, we must nonetheless acknowledge that “even when the sentences are to be served concurrently, a defendant is prejudiced by having more convictions than are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶31 (citations omitted). We therefore consider the arguments raised within this assignment of error under a plain error analysis.
{¶ 37} Plain error exists when there is a deviation from a legal rule, the error is obvious on the face of the record, and the error affects a substantial right. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶15-17.
B
{¶ 38} Count 1 charged White with aggravated burglary under
{¶ 39} We take it as a given that an abstract comparison of the elements of aggravated burglary in
{¶ 40} This does not end our analysis, however, as Brown commands us to identify the societal interests behind the aggravated burglary statute and determine whether different subsections of the statute serve those same interests. As we previously noted, the supreme court has found that the aggravated burglary statute “seeks to minimize the risk of harm to persons.” Brown, 119 Ohio St.3d at ¶36. In Mitchell, the supreme court stated:
{¶ 41} “Aggravated burglary is classified as the most serious of these offenses precisely because it carries the greatest potential threat that an
{¶ 42} Subsections (A)(1) and (A)(2) of
{¶ 43} Having found that the offenses were allied, we proceed to the next step of the analysis and consider whether the offenses were committed separately or with a separate animus. The state offered no proof to show that White trespassed more than once into the dwelling occupied by the victims. The number of victims present inside the house was immaterial to the trespass count — there was one house, so only one trespass.
C
{¶ 45} Count 3 charged White with felonious assault of the sister under
{¶ 46} In State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, paragraph two of the syllabus states: “Felonious assault defined in
{¶ 47} Because the offenses are allied, we next consider whether they were committed separately or with a separate animus. The sister testified
{¶ 48} With no more than ten seconds elapsing between being struck with the BB gun, falling to the ground and being kicked in the ribs, we conclude that the felonious assault counts occurred so close in time that they were committed with the same animus in a continuing course of conduct. By the sister‘s own description, the two events were part of an overall melee inside the house, and there were no facts offered from which the court could plausibly distinguish between the pistol-whipping and kicking.
{¶ 49} We therefore find that felonious assault as charged under both
D
{¶ 50} Count 6 charged White with aggravated robbery under
{¶ 52} Applying Brown, however, leads us to conclude that counts 6 and 7 were allied offenses. As with the aggravated burglary counts, the societal interest in the aggravated form of robbery is to protect the public from harm and from the potential of harm caused by a deadly weapon or dangerous ordnance during the commission of a robbery. As alleged in this case, the counts were simply alternative theories of culpability under the same statute, so they were allied offenses.
{¶ 53} Under the second-step of the Rance test, we find that the aggravated robbery offenses were committed with the same animus. Using the same analysis we applied to the felonious assault counts, we find that brandishing the deadly weapon and using the deadly weapon to cause physical harm to the sister were actions committed with the same animus. The
{¶ 54} We therefore find that aggravated robbery as charged under both
E
{¶ 55} Finally, White complains that the court should have merged all six kidnapping counts. Those counts corresponded to the six persons inside the house at the time of the offenses. Because those counts were committed against different individuals, they constituted distinct counts that were not allied offenses. See State v. Jones (1985), 18 Ohio St.3d 116, 117, 480 N.E.2d 408; State v. Turner, 105 Ohio St.3d 331, 342, 2005-Ohio-1938, 826 N.E.2d 266, fn. 2.
F
{¶ 56} In summary, we find that the aggravated burglary charges in counts 1 and 2 are allied offenses of similar import; the felonious assault charges in counts 3 and 4 are allied offenses of similar import; and the aggravated robbery charges in counts 6 and 7 are allied offenses of similar import. The kidnapping charges in counts 11-16 are not allied offenses of similar import.
{¶ 57} Having found allied offenses of similar import and that were committed with the same animus, we remand this case to the trial court for the limited purpose of resentencing, at which time the state has the right to elect which of the allied offenses to pursue. State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, paragraph three of the syllabus.
{¶ 58} We take the opportunity to clarify the procedure the sentencing court must employ when sentencing involves allied offenses, particularly in light of finality concerns.
{¶ 59}
{¶ 60} So Whitfield says that for purposes of
{¶ 61} If the trial court cannot sentence a defendant on an allied offense, there can be no “conviction” for purposes of
{¶ 62} When there has been a guilty finding on an allied offense, the sentencing judge must comply with
Judgment affirmed in part, reversed in part and remanded for resentencing.
It is ordered that the parties bear their own 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 Cuyahoga County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
ANN DYKE, J., CONCURS;