State v. Ervin-Williams ( 2014 )

[Cite as State v. Ervin-Williams, 2014-Ohio-5473.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-T-0009
- vs - :
TAYLOR ERVIN-WILLIAMS, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CR
0143.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Kenneth J. Lewis, 1220 West 6th Street, #502, Cleveland, OH 44113 (For Defendant-
Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Taylor Ervin-Williams, appeals his convictions and
sentence in the Trumbull County Court of Common Pleas on various charges of
Aggravated Burglary, Aggravated Robbery, Kidnapping, Failure to Comply with Order or
Signal of Police Officer, Having Weapons while under Disability, and Tampering with
Evidence. The issues before this court are whether Ervin-Williams’ aggregate thirty-
nine-year prison sentence is “too harsh” given the mitigating circumstances and the fact
that his charges were allied offenses, and whether his convictions were against the
manifest weight of the evidence where a weapon was not found on his person and the
victims did not positively identify him based on his appearance. For the following
reasons, we affirm the decision of the court below.
{¶2} On February 25, 2013, the underlying criminal action was initiated in the
Warren Municipal Court with charges being filed against Ervin-Williams. An Indictment
was subsequently issued and the case was transferred to common pleas court. Ervin-
Williams pled not guilty to the charges.
{¶3} On May 30, 2013, the Trumbull County Grand Jury issued a Superseding
Indictment, charging Ervin-Williams with the following: Aggravated Burglary (Count 1), a
felony of the first degree in violation of R.C. 2911.11(A)(1) and (B), with a Firearm
Specification in violation of R.C. 2941.145; Aggravated Robbery (Count 2), a felony of
the first degree in violation of R.C. 2911.01(A)(1) and (C), with a Firearm Specification
in violation of R.C. 2941.145; Kidnapping (Count 3), a felony of the first degree in
violation of R.C. 2905.01(A)(2) and (C)(1), with a Firearm Specification in violation of
R.C. 2941.145; Kidnapping (Count 4), a felony of the first degree in violation of R.C.
2905.01(A)(2) and (C)(1), with a Firearm Specification in violation of R.C. 2941.145;
Failure to Comply with Order or Signal of Police Officer (Count 5), a felony of the third
degree in violation of R.C. 2921.331(B), (C)(5)(a)(i), and (D); Having Weapons while
under Disability (Count 6), a felony of the third degree in violation of R.C. 2923.13(A)(2)
and (B); and Tampering with Evidence, a felony of the third degree in violation of R.C.
2921.12(A)(1) and (B).
2
{¶4} On June 7, 2013, Ervin-Williams entered a plea of not guilty to the charges
in the Superseding Indictment.
{¶5} On January 6, 2014, a jury trial began. The following persons testified on
behalf of the State:
{¶6} Reiko Williamson was living at 156 Charles Avenue in Warren, Ohio, with
her four children on February 22, 2013. On this evening, three of her children were at
home and another child was spending the night. Ms. Williamson had fallen asleep in
her bedroom watching television with her oldest child, Bryce Humphrey (age nineteen).
{¶7} At about 10:00 p.m., Ms. Williamson was awakened by a stranger in her
room. The stranger “had on jeans and a black hoody” with “a distinct glittery marking on
the back,” a “bright red bandana tied around his face,” and was holding a gun. He
addressed her: “Yeah, you know what this is. Get up. * * * Give me your money.” The
stranger instructed Ms. Williamson to wake Bryce up, which she did. Ms. Williamson
gave the stranger forty dollars which she had in her purse. The stranger demanded
more money, threatening that “somebody is going to die tonight” if she did not give him
more money. Ms. Williamson protested that her money was in the bank. The stranger
replied, “to the ATM, let’s go.”
{¶8} Ms. Williamson drove Bryce (in the passenger seat) and the stranger (in
the back seat) in her Buick Century to the Seven Seventeen ATM machine on West
Market Street. Since the driver’s side window was not operating, Ms. Williamson exited
the vehicle, withdrew three hundred dollars from the ATM, and handed it to the stranger.
Ms. Williamson explained that three hundred dollars was the most she was able to
withdraw from the ATM. The stranger replied: “You think I’m playing with you? I’m
3
gonna shoot him in the back of his head [indicating Bryce]. Get me more money.” Ms.
Williamson attempted to withdraw more money.
{¶9} When Ms. Williamson advised the stranger she was unable to withdraw
more money, he demanded she “get in the car.” Ms. Williamson motioned to Bryce with
her hands, turned and began to run. Bryce exited the vehicle and followed. Bryce ran
to the Hot Dog Shoppe and told the employees to call 911. Ms. Williamson flagged
down a motorist and called 911 using his phone. When she looked back toward the
ATM, the stranger and her Buick were gone.
{¶10} Later that evening, Ms. Williamson identified “the red bandana and the
hoody with the sparkly stuff on the back” which had been recovered by the police.
{¶11} Bryce Humphrey testified that, after being awoken on the evening of
February 22, 2013, he was made to lie on the floor, face down, by a stranger wearing “a
black coat and a red bandana,” and holding a gun. There was little conversation
between the stranger and Bryce, but Bryce heard the stranger demanding money from
his mother.
{¶12} Bryce accompanied his mother and the stranger to the ATM. On his
mother’s signal, he ran from the Buick. The stranger climbed into the front seat and
drove away.
{¶13} That evening, Bryce was taken by police to an apartment on Belmont
Avenue to identify a suspect. The suspect was not wearing a jacket or bandana. Since
the suspect had been masked, Bryce was not able to make a physical identification.
Bryce was able to identify the suspect as Ervin-Williams after hearing him speak. Bryce
was “very certain” that Ervin-Williams was the man who had robbed his mother based
4
on the voice identification. Bryce further testified that Ervin-Williams was a casual
acquaintance, whom he could have recognized if he could have seen his face. Later, at
the police station, Bryce identified the jacket and bandana Ervin-Williams had been
wearing.
{¶14} BreeAnn Humphrey testified that she was Ms. Williamson’s daughter, but
was not involved in the events of February 22, 2013. BreeAnn did testify that she was
friends with Breyaja Emerson who was dating Ervin-Williams in February 2013.
BreeAnn also testified that Ervin-Williams was living at Breyaja’s apartment on Belmont
Avenue.
{¶15} Officer David Weber of the Warren Police Department testified that, on the
evening of February 22, 2013, he responded to a reported kidnapping and robbery in
the vicinity of the Hot Dog Shoppe. The suspect was reported to be operating a tan-
colored Buick. Officer Weber encountered the Buick in the area of South Street and
Charles Avenue and began pursuit. The Buick fled at speeds in excess of the posted
speed limits and without regard for traffic control devices.
{¶16} On Elm Road, the Buick drove into an empty grassy lot just north of
Handyman Ace Hardware. Officer Weber continued on Elm until he was able to turn
east on Washington Street. Officer Weber noted that the driver’s side door opened and
the interior dome light of the Buick came on while the vehicle was passing through the
grassy lot.
{¶17} Pursuit continued until the driver of the Buick abandoned the vehicle on
Prospect Avenue. Officer Weber then pursued the suspect on foot. Officer Weber lost
sight of the suspect, but neighborhood residents directed him toward a duplex at 354
5
Belmont Avenue. Through the front picture window, Officer Weber observed a male
subject walking toward the rear of the house. At this point, other police officers were
covering the building’s exits and a search of the duplex began.
{¶18} In the upstairs apartment (352 Belmont Avenue), Officer Weber located a
man and woman on a mattress on the floor acting “like they were sleeping when they
weren’t.” The male identified himself as Ervin-Williams and was arrested. In the same
room, Officer Weber recovered a pair of wet, muddy boots and testified that the ground
over which he had pursued the suspect was wet and muddy.
{¶19} Officer Timothy Ladner of the Warren Police Department testified that he
was involved in the pursuit of Ervin-Williams on February 22, 2013. Officer Ladner’s
police cruiser passed the Buick coming from the opposite direction on Charles Avenue.
Officer Ladner was able to observe the driver of the Buick and subsequently identified
him as the suspect arrested on Belmont Avenue, i.e., as Ervin-Williams. At the Belmont
Avenue residence, Officer Ladner found a black jacket and a red bandana lying on the
floor of a ground-floor closet. In the drawer of an end table, Officer Ladner found a toy
plastic handgun. Elsewhere in the residence, he recovered Ervin-Williams’ identification
card.
{¶20} Officer Eric Laprocina of the Warren Police Department interviewed Bryce
at the Hot Dog Shoppe on the evening of February 22, 2013, and drove him to the
Belmont residence. From the back of Officer Laprocina’s police cruiser, Bryce was able
to observe Ervin-Williams and hear him speak. Upon hearing Ervin-Williams’ voice,
Bryce identified him “definitely” as the man who abducted him and his mother.
6
{¶21} Wayne Thorne testified that, on February 23, 2013, he found a handgun in
the grassy area next to the Handyman Hardware on Elm Road. Thorne noted that the
gun had live shells.
{¶22} Sergeant Sherrey McMahon of the Warren Police Department testified
regarding the custody of the physical evidence in the case.
{¶23} Officer Carrie Betts of the Trumbull County Adult Probation Department
testified that, in January 2013, Ervin-Williams was placed under her supervision as part
of his sentence in Trumbull County Common Pleas Case No. 12-CR-541, for two counts
of Burglary.
{¶24} Officer Brian Cononico of the Warren Police Department was present at
the Belmont Avenue residence when Ervin-Williams was arrested. Officer Cononico
testified that he was yelling at the officers, calling them “soft” and their police cruisers
“slow and [saying] that we couldn’t keep up with him.”
{¶25} Officer Frank Tempesta of the Warren Police Department was present at
the Belmont Avenue residence when Ervin-Williams was arrested. Officer Tempesta
testified that Ervin-Williams was yelling that the police cruisers were slow and “ain’t shit”
and that he cannot be “charged with aggravated robbery if [he] don’t have a gun.”
{¶26} Detective Michael Stabile of the Warren Police Department testified that
he submitted the handgun found by Thorne and buccal swabs taken from Ervin-Williams
to the Bureau of Criminal Identification and Investigation.
{¶27} Lynda Eleveth, a forensic scientist for the Bureau of Criminal Identification
and Investigation, testified that a partial DNA profile from the trigger of the handgun
found by Thorne (a Rossi .38 Special) was a mixture consistent with contributions from
7
Ervin-Williams and an unknown individual, and that the proportion of the population that
cannot be excluded as possible contributors to the DNA profile is 1 in 5,540 unrelated
individuals.
{¶28} At the close of the State’s case, counsel for Ervin-Williams moved the trial
court for acquittal under Criminal Rule 29, which motion the court denied.
{¶29} On January 8, 2014, the jury returned a verdict of guilty on all seven
counts of the Indictment.
{¶30} On January 15, 2014, a sentencing hearing was held. At the conclusion of
the hearing, the trial court sentenced Ervin-Williams to serve ten years in prison for
Count 1 (Aggravated Burglary) to be served consecutively to the sentences for Counts
2, 3, and 4 with three additional years for the Firearm Specification; ten years in prison
for Count 2 (Aggravated Robbery) to be served consecutively to the sentences for
Counts 1, 3, and 4 with three additional years for the Firearm Specification; ten years in
prison for Count 3 (Kidnapping) to be served consecutively to the sentences for Counts
1, 2, and 4 with the Firearm Specification merging with the Firearm Specification for
Count 1; ten years in prison for Count 4 (Kidnapping) to be served consecutively to the
sentences for Counts 1, 2, and 3 with the Firearm Specification merging with the
Firearm Specification for Counts 1 and 2; sixty months in prison for Count 5 (Failure to
Comply with Order or Signal of Police Officer) to be served consecutively to all other
sentences; thirty-six months in prison for Count 6 (Having Weapons while under
Disability) to be served concurrently to all other sentences; and thirty-six months in
prison for Count 7 (Tampering with Evidence) to be served concurrently to all other
8
sentences. Additionally, the court suspended Ervin-Williams’ driving privileges for three
years.
{¶31} On January 15, 2014, a written Entry on Sentence was issued.
{¶32} On January 23, 2014, a resentencing hearing was held. The sentence for
Count 5 was corrected to thirty-six months in prison.
{¶33} On January 28, 2014, a Nunc pro Tunc Entry was issued.
{¶34} On February 14, 2014, Ervin-Williams filed his Notice of Appeal.
{¶35} On April 10, 2014, an Amended Entry on Sentence was issued, modifying
Ervin-Williams’ sentence so that the ten-year sentence for Count 3 would be served
concurrently with the ten-year sentence for Count 4. Ervin-Williams’ aggregate
sentence was thirty-nine years.
{¶36} On appeal, Ervin-Williams raises the following assignments of error:
{¶37} “[1.] The trial court erred and abused its discretion in sentencing the
appellant too harshly.”
{¶38} “[2.] The appellant/defendant’s convictions were against the manifest
weight of the evidence.”
{¶39} We will discuss the second assignment of error first.
{¶40} In Ohio, “a court of appeals has the authority to reverse a judgment as
being against the weight of the evidence.” Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 7. “No judgment resulting from a trial by jury shall
be reversed on the weight of the evidence except by the concurrence of all three judges
hearing the cause.” Ohio Constitution, Article IV, Section 3(B)(3).
9
{¶41} Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side
of the issue rather than the other. It indicates clearly to the jury that
the party having the burden of proof will be entitled to their verdict,
if, on weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which is to
be established before them. Weight is not a question of
mathematics, but depends on its effect in inducing belief.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s
Law Dictionary 1594 (6th Ed.1990).
{¶42} The court [of appeals], reviewing the entire record, 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. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.
Id., quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶43} “In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” Eastley at ¶ 21; Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3 (“every reasonable
10
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts”) (citation omitted).
{¶44} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘“thirteenth juror’” and disagrees with the factfinder’s resolution of the conflicting
testimony.” (Citation omitted.) Thompkins at 387. “When a court of appeals
determines that a jury verdict is against the weight of the evidence, it should remand the
case for a new trial.” Eastley at ¶ 22.
{¶45} Ervin-Williams asserts that “the State of Ohio failed to adequately prove * *
* that [he] was the assailant on the night in question” and “that ANY firearm had been
utilized in connection with the crimes that took place on the night in question.”
Appellant’s brief at 14.
{¶46} With respect to the identification, Ervin-Williams notes that Ms. Williamson
never identified him as the assailant whom she described as wearing a “black hoody.”
The black jacket recovered from the Belmont Avenue apartment was not a hoody-style
jacket (it did not have a hood), but it did have a silver-glitter emblem on the back. Ervin-
Williams also notes that Bryce only made a voice identification and that was after he
had been apprehended and in police custody. None of these considerations alter the
conclusion that the greater amount of credible evidence favors the identification of
Ervin-Williams as the assailant. Ms. Williamson was never asked to identify Ervin-
Williams and, immediately following her escape, was being treated by EMS for an
asthma attack. Bryce was certain of the voice identification and his testimony was
credible. Officer Ladner positively identified Ervin-Williams as the man operating Ms.
11
Williamson’s Buick and Officer Weber identified him as the man who abandoned the
Buick and fled to the Belmont Avenue apartment. These identifications were
corroborated by Ervin-Williams’ comments regarding the slow speed of the pursuing
police cruisers. The possibility that the assailant was someone different from the
Buick’s operator is not a serious consideration.
{¶47} With respect to the use of a firearm in the commission of the crimes,
Ervin-Williams notes that the gun recovered from the Belmont Avenue apartment was a
toy, plastic gun. Neither Ms. Williamson nor Bryce identified with certainty which gun
was used to commit the crimes. The evidence, nevertheless, supports the jury’s
conclusion that Ervin-Williams had used the .38 Special recovered from the grassy field
on Elm Road. Officers Weber and Tempesta observed Ervin-Williams’ flight through the
field and Officer Weber observed him open the door (significant given Ms. Williamson’s
testimony that the window was inoperable). The trigger of the .38 Special contained
Ervin-Williams’ DNA. Ervin-Williams’ comment that, without a gun, he could not be
charged with aggravated robbery further supports the conclusion that Ervin-Williams
had used the abandoned .38 Special in the commission of the crimes.
{¶48} The second assignment of error is without merit.
{¶49} Under the first assignment of error, Ervin-Williams challenges his
sentence as being excessively “harsh” in light of the mitigating circumstances and
asserts that he received consecutive sentences for allied offenses of similar import.
{¶50} “[A]ppellate courts must apply a two-step approach when reviewing felony
sentences. First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
12
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-
of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, ¶ 26.
{¶51} Ervin-Williams claims his aggregate sentence of thirty-nine years is too
harsh. There is little in the record to support this contention. Ervin-Williams did not
accept responsibility for or acknowledge his conduct. To Ms. Williamson, he apologized
for what “you went through with this case” and hoped she could sleep better knowing
“someone is incarcerated.” Ms. Williamson demonstrated more genuine remorse for
Ervin-Williams’ fate than he did.
{¶52} With respect to allied offenses, Ervin-Williams claims that he should not
have been sentenced for Aggravated Burglary, Aggravated Robbery, and two counts of
Kidnapping as “the events of this case arose out of one burglary, and one kidnapping.”
Appellant’s brief at 13.
{¶53} Ohio’s multiple counts statute or allied offenses of similar import statute
provides:
(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
13
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.
R.C. 2941.25; State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979) (the use
of the term “animus” in R.C. 2941.25(B), interpreted as meaning “purpose or, more
properly, immediate motive,” requires an examination of “the defendant’s mental state in
determining whether two or more offenses may be chiseled from the same criminal
conduct”).
{¶54} The Ohio Supreme Court has described the application of R.C. 2941.25
as follows:
In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible
to commit one offense and commit the other with the same conduct,
not whether it is possible to commit one without committing the
other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816(Whiteside, J., concurring) (“It is not necessary that both crimes are
always committed by the same conduct but, rather, it is sufficient if
both offenses can be committed by the same conduct. It is a matter
of possibility, rather than certainty, that the same conduct will
constitute commission of both offenses.” [Emphasis sic]). If the
offenses correspond to such a degree that the conduct of the
defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
14
If the multiple offenses can be committed by the same
conduct, then the court must determine whether the offenses were
committed by the same conduct, i.e., “a single act, committed with a
single state of mind.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,
895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are
allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of
one offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has separate
animus for each offense, then, according to R.C. 2941.25(B), the
offenses will not merge.
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-51.
{¶55} “An appellate court should apply a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶56} Ervin-Williams’ Aggravated Burglary conviction arose from his trespass, by
force, stealth, or deception, of Ms. Williamson’s residence while she and her children
were present for the purpose of taking forty dollars of her money and threatening to
inflict physical harm on her and Bryce. R.C. 2911.11(A)(1).
{¶57} The acts constituting Aggravated Burglary completed, Ervin-Williams
proceeded to commit two incidents of Kidnapping, when, by force and threat, he
removed Ms. Williamson and Bryce from the residence for the purpose of committing
15
Aggravated Robbery. R.C. 2905.01(A)(2). As there were two victims of the Kidnapping,
the two Kidnapping charges were not allied offenses. State v. Lewis, 11th Dist. Lake
No. 2012-L-074, 2013-Ohio-3974, ¶ 122 (“[w]hen the same offense is committed
against different victims during the same course of conduct, there is a separate animus
as to each victim; therefore, under such circumstances, the multiple offenses are not
deemed ‘allied’ for purposes of R.C. 2941.25, and a separate sentence can be imposed
for each offense”).
{¶58} The Ohio Supreme Court has recognized that “implicit within every
robbery (and aggravated robbery) is a kidnapping.” State v. Jenkins, 15 Ohio St.3d
164, 198, 473 N.E.2d 264 (1984), fn. 29. “Therefore, a kidnapping specification merges
with an aggravated robbery specification unless the offenses were committed with a
separate animus.” State v. Fears, 86 Ohio St.3d 329, 344, 715 N.E.2d 136 (1999). The
Ohio Supreme Court adopted the following guidelines “[i]n 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)”:
(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;
16
(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, 60 Ohio St.2d 126, 397 N.E.2d 1345, at syllabus.
{¶59} In the present case, the movement of Ms. Williamson and Bryce was not
merely incidental to the underlying Aggravated Robbery. Rather, their movement was
substantial and a necessary precursor of the Aggravated Robbery. Ervin-Williams had
to compel Ms. Williamson to drive to the ATM to obtain the money of which he would
rob her. Having obtained her three hundred dollars from the ATM, Ervin-Williams
prolonged the Kidnapping by ordering her back to the ATM in a futile attempt to obtain
more money and, thereafter, back into the Buick. While facilitating the commission of
the Aggravated Robbery, the acts constituting the Kidnapping remained distinct with an
independent significance from those of the Robbery. Had Ervin-Williams initially
accosted Ms. Williamson at the ATM, the animus or immediate motive for the restraint
and the theft would have substantially been the same.
{¶60} There are several cases supporting the conclusion that, when a victim is
forcibly moved from one location to another for the purpose of enabling another offense,
the Kidnapping charge does not merge. State v. Houston, 1st Dist. Hamilton No. C-
130429, 2014-Ohio-3111, ¶ 25-26 (Kidnapping did not merge where the victim “was
removed from the home by Houston’s armed compatriot, and forced to drive several
minutes to a local bank, get out of the car, and withdraw money from an ATM machine”)
17
(cases cited); State v. Martin, 11th Dist. Lake No. 2012-L-043, 2013-Ohio-1944, ¶ 38
(“the plan to get Mr. Suleiman into the back room and the prolonged restraint involved
subjected him to an increase in the risk of harm that was separate and apart from the
aggravated robbery”); State v. Vance, 10th Dist. Franklin No. 11AP-755, 2012-Ohio-
2594, ¶ 16-17 (where the “defendant transported the victim from the Walgreens, where
he took the victim’s belongings, to an ATM, where he withdrew money from her
account, * * * the kidnapping, although part of the aggravated robbery, involved
substantial asportation and prolonged restraint, both of which support the trial court’s
determination that defendant had a separate animus for the kidnapping”).
{¶61} The first assignment of error is without merit.
{¶62} For the foregoing reasons, Ervin-Williams’ convictions and sentence for
various counts of Aggravated Burglary, Aggravated Robbery, Kidnapping, Failure to
Comply with Order or Signal of Police Officer, Having Weapons while under Disability,
and Tampering with Evidence in the Trumbull County Court of Common Pleas are
affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
____________________________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
18
{¶63} I agree with the majority regarding appellant’s second assignment of error
that his convictions are not against the manifest weight of the evidence. Upon review,
the state presented ample evidence that appellant was the assailant in this matter and
that he committed these crimes with a loaded firearm. The jury found the state’s
witnesses credible and chose to believe them. State v. DeHass, 10 Ohio St.2d 230,
paragraph one of the syllabus (1967). Based on the evidence presented, the jury did
not clearly lose its way in finding appellant guilty. State v. Schlee, 11th Dist. Lake No.
93-L-082, 1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994); State v. Thompkins, 78
Ohio St.3d 380, 387 (1997).
{¶64} However, I disagree with the majority regarding appellant’s first
assignment of error as I believe aggravated burglary, aggravated robbery, and
kidnapping are allied offenses of similar import, were committed with the same animus,
and should have merged for sentencing.
{¶65} R.C. 2953.08(G) and the clear and convincing standard should be applied
to determine whether a felony sentence is contrary to law. See, e.g., State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶10; State v. Drobny, 8th Dist.
Cuyahoga No. 98404, 2013-Ohio-937, ¶5, fn.2; State v. Kinstle, 3rd Dist. Allen No. 1-
11-45, 2012-Ohio-5952, ¶47; State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-
Ohio-5899, ¶52.
{¶66} In reviewing a felony sentence, R.C. 2953.08(G) provides:
{¶67} “(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
19
{¶68} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶69} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶70} “(b) That the sentence is otherwise contrary to law.”
{¶71} Although trial courts have full discretion to impose any term of
imprisonment within the statutory range, they must consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
{¶72} In this case, the trial court consecutively sentenced appellant and found
that all seven counts involve separate, distinct conduct and that none of the counts
constitute allied offenses subject to merger. For the reasons that follow, this writer
disagrees.
{¶73} This court’s review of an allied offenses question is de novo. State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the
protections of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple
punishments for the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, * * * ¶23. At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger
20
is ‘the penal philosophy that a major crime often includes as inherent therein the
component elements of other crimes and that these component elements, in legal
effect, are merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * *
(1971).” (Parallel citations omitted.) Williams at ¶13.
{¶74} R.C. 2941.25 states:
{¶75} “(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.
{¶76} “(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.”
{¶77} “R.C. 2941.25(A) clearly provides that there may be only one conviction
for allied offenses of similar import. Because a defendant may be convicted of only one
offense for such conduct, the defendant may be sentenced for only one offense. * * *
[A]llied offenses of similar import are to be merged at sentencing. See State v. Brown,
119 Ohio St.3d 447, 2008-Ohio-4569, * * * ¶43; State v. McGuire, (1997) 80 Ohio St.3d
390, 399. Thus, a trial court is prohibited from imposing individual sentences for counts
that constitute allied offenses of similar import. * * * Both R.C. 2941.25 and the Double
Jeopardy Clause prohibit multiple convictions for the same conduct. For this reason, a
trial court is required to merge allied offenses of similar import at sentencing.”
Underwood, supra, at ¶26-27. (Emphasis sic.) (Parallel citations omitted.)
21
{¶78} “Under Crim.R. 52(B), ‘(p)lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.’ * * *
[I]mposition of multiple sentences for allied offenses of similar import is plain error.
State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 * * * ¶96-102.” Underwood,
supra, at ¶31. (Parallel citation omitted.)
{¶79} By way of a brief history, the method employed by courts in determining
whether two crimes constitute allied offenses of similar import has evolved. In State v.
Rance, 85 Ohio St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C.
2941.25(A) analysis, the statutorily defined elements of offenses that are claimed to be
of similar import are compared in the abstract.” Id., paragraph one of the syllabus.
(Emphasis sic.) Since its release, Rance has gone through various modifications and
revisions. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown,
119 Ohio St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-
1059.
{¶80} The Supreme Court of Ohio revisited the allied offenses analysis again in
2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
Under the new analysis, which this court later relied upon and embraced in State v.
May, 11th Dist. Lake No. 2010-L-131, 2011-Ohio-5233, “[w]hen determining whether
two offenses are allied offenses of similar import subject to merger under R.C. 2941.25,
the conduct of the accused must be considered.” Johnson, supra, at the syllabus. The
Johnson court provided the new analysis as follows:
{¶81} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense and
22
commit the other with the same conduct, not whether it is possible to commit one
without committing the other. * * * If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
{¶82} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
‘a single act, committed with a single state of mind.’
{¶83} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶84} “Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has [a] separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations
omitted.) (Emphasis sic.)
{¶85} This court went on to state in May, supra, at ¶50-51:
{¶86} “‘In departing from the former test, the court developed a new, more
context-based test for analyzing whether two offenses are allied thereby necessitating a
merger. In doing so, the court focused upon the unambiguous language of R.C.
2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,
rather than the elements of the crimes which are charged as a result of the defendant’s
conduct.’ [State v.] Miller[,11th Dist. Portage No. 2009-P-0090, 2011-Ohio-1161,] at
¶47, citing Johnson at ¶48-52.
23
{¶87} “‘The (Johnson) court acknowledged the results of the above analysis will
vary on a case-by-case basis. Hence, while two crimes in one case may merge, the
same crimes in another may not. Given the statutory language, however, this is not a
problem. The court observed that inconsistencies in outcome are both necessary and
permissible “(* * *) given that the statute instructs courts to examine a defendant’s
conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at
¶52.”
{¶88} The issue here is whether any of appellant’s convictions are allied
offenses of similar import subject to merger for purposes of sentencing, which this court
shall review de novo. Williams, supra, at ¶12. As stated, appellant was charged with,
convicted of, and sentenced on seven counts: count one, aggravated burglary; count
two, aggravated robbery; counts three and four, kidnapping; count five, failure to comply
with order or signal of police officer; count six, having weapons while under disability;
and count seven, tampering with evidence. The majority of appellant’s 39-year
sentence stems from the charges involving aggravated burglary, aggravated robbery,
and kidnapping. Thus, a de novo review should be conducted in order to determine
whether any of these three main charges are allied offenses subject to merger.1
{¶89} R.C. 2911.11(A)(1), aggravated burglary, states: “[n]o person, by force,
stealth, or deception, shall trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure, when another person other
than an accomplice of the offender is present, with purpose to commit in the structure or
1. Regarding the lesser charges, this writer notes that having weapons while under disability and
tampering with evidence have been found to not be allied offenses. See State v. Thomas, 8th Dist.
Cuyahoga No. 94042, 2010-Ohio-5237, ¶28. In addition, I have found no case that has included failure to
comply with order or signal of police officer and tampering with evidence as allied offenses.
24
in the separately secured or separately occupied portion of the structure any criminal
offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on
another[.]”
{¶90} R.C. 2911.01(A)(1), aggravated robbery, states: “[n]o person, in
attempting or committing a theft offense * * * or in fleeing immediately after the attempt
or offense, shall * * * [h]ave a deadly weapon on or about the offender’s person or under
the offender’s control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it[.]”
{¶91} R.C. 2905.01(A)(2), kidnapping, states: “[n]o person, by force, threat, or
deception * * * shall remove another from the place where the other person is found or
restrain the liberty of the other person * * * [t]o facilitate the commission of any felony or
flight thereafter[.]”
{¶92} Applying Johnson, aggravated burglary, aggravated robbery, and
kidnapping are allied offenses of similar import, as it is possible to commit one offense
and commit the other with the same conduct. See State v. Lacavera, 8th Dist.
Cuyahoga No. 96242, 2012-Ohio-800, ¶47 (aggravated burglary, aggravated robbery,
and kidnapping are allied offenses subject to merger); see also State v. Jenkins, 15
Ohio St.3d 164, 198, fn. 29 (1984) (“implicit within every robbery (and aggravated
robbery) is a kidnapping”). Again, under R.C. 2941.25, Ohio’s multiple-count statute, if
a defendant’s conduct results in allied offenses of similar import, the defendant may
ordinarily be convicted of only one of the offenses. R.C. 2941.25(A). However, if the
defendant commits each offense separately or with a separate animus, then convictions
may be entered for both offenses. R.C. 2941.25(B).
25
{¶93} Thus, although aggravated burglary, aggravated robbery, and kidnapping
are allied offenses, the specific facts of this case must be reviewed to determine
whether appellant committed the charged offenses separately or with a separate
animus so as to permit multiple punishments.
{¶94} This case involves two victims, Williamson and Humphrey. The general
rule is that when allied offenses are committed against two or more victims, the
defendant may be sentenced for two or more crimes. State v. Fields, 97 Ohio App.3d
337, 346 (1st Dist.1994). However, a rigid application of this “general rule” can lead to
inequitable or even absurd results. To that end, the First District Court of Appeals
stated:
{¶95} “To extend this analysis to every multiple-victim/multiple-crimes case
would be to adopt a bright-line rule that allied offenses affecting separate victims,
regardless of the defendant’s conduct, are not subject to merger and can always be
punished separately. This bright-line rule would run afoul of supreme court case law and
of the very text of R.C. 2941.25, which ‘itself instructs us to look at the defendant’s
conduct when evaluating whether his offenses are allied.’ Johnson, [supra,] at ¶42. In
Johnson, the court cautioned against tests that ‘instruct us to jump immediately’ to
conclusions based upon solely abstract or formulaic assumptions. Id. It acknowledged
that ‘this analysis may be sometimes difficult to perform and may result in varying
results for the same set of offenses in different cases. But different results are
permissible, given that the statute instructs courts to examine a defendant’s conduct -
an inherently subjective determination.’ Id. at ¶52. As one appellate court has noted,
‘Johnson ushered in a new era where trial courts are always required to delve into the
26
factual underpinnings of the case in order to resolve (this) issue, akin to the factual
inquiries required under State v. Logan [* * *].’ State v. Baker, 8th Dist. No. 97139,
2012-Ohio-1833, ¶13. We do not believe the General Assembly or the supreme court
intended our conduct-based inquiry to begin and end by counting the number of
victims.” State v. Anderson, 1st Dist. Hamilton No. C-110029, 2012-Ohio-3347, ¶37.
(Parallel citations omitted.)
{¶96} The facts before this court do not support that appellant committed an
aggravated burglary, then decided separately to commit an aggravated robbery, then
decided separately to commit two kidnappings. Rather, the manner of appellant’s
actions supports a single “purpose” that should lead to merger. The evidence reveals
that appellant’s purpose was to obtain money, irrespective of how many individuals he
actually encountered. Because there was only $40 in the house, appellant forced the
victims to drive him to a nearby ATM where Williamson withdrew $300. The victims ran
away and appellant drove off in the vehicle. He was chased by police and arrested.
{¶97} The record establishes that the incidents occurred simultaneously. Also,
appellant evidenced the same animus in committing the offenses. Looking to
appellant’s conduct, this was a single act with a single state of mind. The test under
Johnson is not whether the elements line up, which is the essence of the Rance
analysis. Rather, the test is whether the crimes were committed by the same conduct
and with the same animus. In this case, I believe they were.
{¶98} “‘[T]he purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,
multiple findings of guilt and corresponding punishments heaped on a defendant for
closely related offenses arising from the same occurrence.’” State v. Helms, 7th Dist.
27
Mahoning No. 08 MA 199, 2012-Ohio-1147, ¶68, quoting Johnson, supra, at ¶43, citing
Maumee v. Geiger, 45 Ohio St.2d 238, 242 (1976). In this case, multiple sentences
have been improperly “heaped” on appellant, pursuant to the principles and purposes of
sentencing under R.C. 2929.11, which under H.B. 86 now provides: “[t]he overriding
purposes of felony sentencing are to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A). (Emphasis added.) Thus, the
legislature has given us the tools as well as a mandate to address the issues of keeping
dangerous criminals off the street, while balancing Ohio’s financial deficits and an
already overcrowded prison system.
{¶99} Based on the facts of this case, I believe aggravated burglary, aggravated
robbery, and kidnapping are allied offenses of similar import, were committed with the
same animus, and should have merged. Therefore, the trial court erred in stacking his
offenses along with the firearm specifications. Appellant’s sentence was excessive as
he should not have been sentenced separately for the offenses.
{¶100} For the foregoing reasons, I concur in part and dissent in part.
28