State v. Jones ( 2019 )

[Cite as State v. Jones,
2019-Ohio-1526.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107338
v. :
RONALD D. JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 25, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-616595-A and CR-17-617724-A
Appearances:
Mary Catherine Corrigan, for appellant.
Michael C. O’Malley, Prosecuting Attorney, and Aqueelah
A. Jordan, Assistant Prosecuting Attorney, for appellee.
MARY J. BOYLE, P.J.:
Defendant-appellant, Ronald Jones, appeals his convictions and
sentence. He raises two assignments of error for our review:
1. The trial court erred by finding that the count(s) of [Cuyahoga C.P.
No. CR-17-617724] did not merge for the purposes of sentencing.
2. The trial court erred by sentencing the appellant to consecutive
sentences.
Finding no merit to his arguments, we affirm.
I. Procedural History and Factual Background
The charges in this case arose after Jones sexually abused his
granddaughter over a two-year period — more than 20 years after he did the same
thing to his daughter (the victim’s mother). Jones went to prison for felonious
sexual penetration in 1994 for sexually abusing his daughter. He was sentenced to
6 to 25 years in prison. He was released in 2006 and classified as a sexual predator
under Megan’s Law. Under Megan’s Law, a sexual-predator classification was the
most severe designation, requiring Jones to register every 90 days for the rest of his
life.
According to the police report in Cuyahoga C.P. No. CR-17-617724-A,
the sheriff received an anonymous tip in 2017 that Jones was not living at his
registered address, which was a boarding house. The tipster informed the sheriff
that Jones had been residing with his wife (the victim’s grandmother) for the past
two years. The sex offender verification unit attempted to verify Jones’s address at
the boarding house on four separate occasions; each attempt resulted in no response
from Jones. Further, a resident of the boarding house told sheriff deputies that he
did not know Jones.
In April 2017, Jones was indicted in Cuyahoga C.P. No. CR-17-
616595-A on three counts, including one count of failure to provide notice of change
of address in violation of R.C. 2950.05(E)(1), a third-degree felony, and two counts
of failure to register in violation of R.C. 2950.04(E), first-degree felonies. Each
count included a furthermore specification that Jones had previously been convicted
of attempted verification of current address in violation of R.C. 2923.02 and
2950.06.
In July 2017, Jones was indicted in No. CR-17-617724-A on five
counts, including one count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of
the first degree; two counts of rape in violation of R.C. 2907.02(A)(2), felonies of the
first degree; and two counts of kidnapping in violation of R.C. 2905.01(A)(4),
felonies of the first degree. Each count contained sexually violent predator
specifications, and the kidnapping counts also contained sexual-motivation
specifications. The indictment alleged that the underlying events occurred between
March 1, 2015 and March 10, 2017.
The police report in CR-17-617724-A stated that police responded to
a call regarding a sexual assault victim at Rainbow Babies and Children’s Hospital.
The victim was 14 years old at the time. She told police that her grandfather had
been sexually assaulting her for two years, beginning when she was 12 years old. The
victim explained to police that she would stay at her grandparents’ house when her
mother worked on weekends. When the victim’s grandmother left for work, Jones
would wake up the victim, make her take her clothes off, and make her lie on her
back on the bed. The victim stated that Jones would “put his penis inside of her
vagina” and it would “move up and down.” Jones would ejaculate inside the victim
and tell her to “clean herself up” and not to “tell anybody about this.” The victim
told police that she was last raped in the middle of March 2017. She said that the
abuse happened more than ten times.
The victim’s mother told police that as soon as her daughter told her
about the abuse, she believed her daughter because Jones did similar things to her
when she was growing up, which resulted in him going to prison.
Jones entered into a plea in both cases. In CR-17-616595-A, Jones
pleaded guilty to an amended indictment of one count of failure to provide notice of
change of address. In CR-17-617724-A, Jones pleaded guilty to an amended
indictment of one count of sexual battery in violation of R.C. 2907.03(A)(1), a felony
of the third degree, and one count of attempted rape in violation of R.C.
2907.02(A)(2) and 2923.02, a felony of the second degree. The remaining counts in
both cases were nolled.
In May 2018, the trial court sentenced Jones to 36 months in prison
for failure to provide notice of change of address. It ordered that this sentence be
served concurrent to the one imposed for CR-17-617724-A. The trial court also
notified Jones that he would be subject to three years of discretionary postrelease
control upon his release from prison and imposed costs, ordering that Jones
perform community work service in prison, if offered, in lieu of paying costs.
In CR-17-617724-A, the trial court sentenced Jones to 8 years in
prison for attempted rape and 5 years for sexual battery, to be served consecutive to
each other but concurrent to the 36 months imposed for CR-17-616595-A, for an
aggregate sentence of 13 years in prison. The trial court notified Jones that he would
be subject to a mandatory period of five years of postrelease control upon his release
from prison and that he was classified as a Tier III sex offender. The trial court also
imposed costs. It is from these judgments that Jones now appeals.
II. Allied Offenses
In his first assignment of error, Jones maintains that the trial court
should have merged his attempted rape and sexual battery convictions. We
disagree.
The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution, and the Ohio Constitution, Article I, Section 10, protect a
defendant against a second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250,
¶ 7. But the Double Jeopardy Clause “does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.” Missouri
v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the
dispositive issue is “whether the General Assembly intended to permit multiple
punishments for the offenses at issue.” State v. Childs, 88 Ohio St.3d 558, 561, 728
N.E.2d 379 (2000).
In Ohio, this constitutional protection is codified in R.C. 2941.25,
which codifies the judicial merger doctrine. State v. Cabrales, 118 Ohio St.3d 54,
2008-Ohio-1625, 886 N.E.2d 181, ¶ 23. “Merger 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.’” Id. at ¶ 23, fn. 3, quoting Maumee v. Geiger, 45 Ohio St.2d 238, 344 N.E.2d
133 (1976).
Pursuant to R.C. 2941.25(A), “[w]here 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.” However,
[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.
R.C. 2941.25(B).
Two or more offenses are of dissimilar import within the meaning of
R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph two of the syllabus.
“At its heart, the allied-offense analysis is dependent upon the facts of
a case because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. If a
defendant’s conduct supports multiple offenses, the defendant can be convicted of
all of the offenses if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import or significance, (2) the conduct shows the offenses were
committed separately, or (3) the conduct shows the offenses were committed with
separate animus or motivation. Id. at paragraph three of the syllabus, citing R.C.
2941.25(B).
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.
At the sentencing hearing, the trial court inquired about merger. The
state explained that the charges did not merge because the indictment was charged
as the first incident in March 2015 and the last incident in March 2017 (the
indictment alleged that the date of the offenses was “on or about March 1, 2015 to
March 10, 2017”). The two counts that Jones pleaded guilty to represented the first
and last incidents.
Defense counsel argued that the two offenses were allied offenses
because although the indictment delineated the incidents as “a first incident and last
incident,” the state presented them “throughout the entire case as a continuing
course of conduct.” Defense counsel further argued that because there were no
specific dates alleged, and the dates and the victim were the same for both charges,
the counts should merge. Defense counsel maintained that the state “created dates”
because the victim did not know exactly when the abuse began or when it ended.
Upon questioning from the trial court, defense counsel agreed that by “course of
conduct” she meant “one event.”
The trial court agreed with the state that the offenses were not allied
offenses of similar import and denied Jones’s request to merge the offenses.
Jones raises the same argument here — that because the indictment
did not allege specific dates, “both offenses were comprised of the same conduct and
same state of mind.” He contends that the dates as alleged in the indictment
“presume a single act.” In support of this argument, Jones cites to State v. Welch,
8th Dist. Cuyahoga No. 95577, 2011-Ohio-3243. He claims that “pursuant to the
logic of Welch,” the offenses should have merged. We disagree.
In Welch, the defendant was charged with 67 counts of sexually
related offenses after his daughter alleged that he had sexually abused her over a
two-year period. The indictment alleged that the offenses occurred between
September 2007 and July 2009. After a bench trial, the defendant was convicted of
12 counts of rape, 12 counts of kidnapping, and 13 counts of sexual battery (as well
as other charges not relevant to this appeal). The trial court merged the rape and
kidnapping offenses for purposes of sentencing. On appeal, the defendant argued
that the trial court should have also merged the rape and sexual battery charges.
This court agreed with Welch that the trial court should have merged
his rape and sexual battery charges with respect to each of the 12 incidents. We
explained, “Twelve of defendant’s convictions for both offenses were based on the
same conduct and state of mind, albeit in respect to 12 incidents.” Id. at ¶ 58. Thus,
12 counts of sexual battery merged into 12 counts of rape because each incident of
rape and each incident of sexual battery were based on the same conduct. If each
count of rape had been based upon a separate incident from each count of sexual
battery, then the offenses would not have merged.
Focusing on Jones’s conduct, the facts in this case are analogous to
the latter rather than the former; that is, in this case, Jones’s sexual battery and
attempted rape convictions resulted from separate conduct. Stated another way,
Jones’s sexual battery conviction and attempted rape conviction resulted from two
separate incidents occurring on separate dates: one in 2015 and one in 2017. Thus,
the offenses were committed separately, and the trial court did not err when it
refused to merge them.
Moreover, Jones’s argument that his sexual battery conviction and
attempted rape conviction were allied offenses based upon the indictment alleging
that the dates of both offenses were from March 1, 2015 to March 10, 2017, is without
merit. Under Ohio law, “an indictment for repeated sexual contact does not need to
specify the exact dates of each contact where the state does not possess or cannot
reasonably obtain such information.” State v. Stansell, 8th Dist. Cuyahoga No.
75889, 2000 Ohio App. LEXIS 1726, 11 (Apr. 20, 2000), quoting State v. Ambrosia,
67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990). Here, the victim told police
that she could not remember the exact dates of the abuse, but she remembered it
had been going on for two years. The victim remembered the last rape had occurred
around the middle of March 2017. Thus, the indictment sufficiently alleged that the
acts allegedly began two years prior to that.
Further, the record amply demonstrates that Jones’s convictions
resulted from multiple occasions of sexual misconduct — not a single “course of
conduct” as Jones argues. In fact, we find that Jones’s argument borders on absurd.
The legislature most certainly did not intend for Jones’s separate rapes — multiple
incidents of raping his 12- to 14-year-old granddaughter over a two-year period — to
merge.
Jones’s first assignment of error is overruled.
III. Consecutive Sentences
In his second assignment of error, Jones concedes that the trial court
made the required findings to impose consecutive sentences under R.C.
2929.14(C)(4), but he argues that the court “did nothing more than make the
minimal required findings.” Jones further argues that the record does not support
the trial court’s consecutive sentence findings.
An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-
Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892.
R.C. 2953.08(G)(2) provides that our review of consecutive sentences is not an
abuse of discretion. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 22, citing R.C. 2953.08(G)(2). Instead, an appellate court must
“review the record, including the findings underlying the sentence or modification
given by the sentencing court.” R.C. 2953.08(G)(2). If an appellate court clearly
and convincingly finds either that (1) “the record does not support the sentencing
court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is otherwise
contrary to law,” then “the appellate court may increase, reduce, or otherwise modify
a sentence * * * or may vacate the sentence and remand the matter to the sentencing
court for resentencing.” Id.R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender, (2) such sentences
would not be disproportionate to the seriousness of the conduct and to the danger
the offender poses to the public, and (3) one of the following applies:
(a) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while 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 offenses 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; or
(c) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
A trial court is not only required to make the statutory findings for
consecutive sentences at the sentencing hearing, but it is also required to
incorporate those findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
According to the presentence investigation report, Jones had a
lengthy criminal history, beginning when he was still a juvenile in 1975. Jones was
adjudicated delinquent for aggravated burglary in July 1975 and aggravated robbery
in November 1975. He was also adjudicated delinquent of criminal damaging and
shoplifting in 1975. As an adult, in addition to felonious sexual penetration in 1994,
Jones was convicted of grand theft in 1985, robbery in 1986, disorderly conduct in
1993, unarmed bank robbery 1994, and failure to provide notice of change of address
in 2012.
The state informed the trial court at the sentencing hearing of the
facts of the two cases. The state then outlined what Jones had been doing from the
county jail since he had been arrested. Essentially, Jones had been calling his wife
from jail, attempting to manipulate her, his daughter, and his granddaughter to
coerce them to not testify against him. Even after he entered into the plea, he still
tried to get his wife to talk to his daughter and granddaughter to try to get them to
not come to the sentencing hearing or make a statement to the court regarding
sentencing. The state opined that these calls show that Jones was “still trying to
exercise his power of control over this family” and “manipulate this system so that
he does not have to accept responsibility of his actions.”
Defense counsel explained that Jones was “remorseful,” “sad,” and
“shameful.” Jones apologized to the victim and his family. He said that he was “truly
sorry about this,” and he prayed that they could “put this behind” them. Jones then
apologized to the court and asked the judge to place him on probation to give him
an opportunity “to right some wrongs in my life.”
The victim wrote a letter to the court for purposes of sentencing. In
the letter, the victim explained that she was “heartbroken” because she really loved
her grandfather. She stated that she still loved him, but that she would never forget
what he did to her. The victim said that she “dreams about this sometimes” and
cries at night when she thinks about it. She said that she was “damaged” by her
grandfather. She wanted her grandfather to go to jail, “not too long, but just enough
so he understands how bad he made me feel and that he hurt me.”
The trial court informed Jones that in “crafting a sentence,” it had to
consider the seriousness of the crime and mitigating factors. The court stated that
“one of those factors” was the fact that Jones was the grandfather of the victim, who
was only 12 years old when the sexual abuse began. The court further explained that
it also had to consider recidivism factors to determine whether Jones was likely to
reoffend in the future. The court stated that Jones had “a reasonably long record,”
involving violent and sexual crimes. The court further indicated that it was
especially concerned about Jones “reoffending specifically with regard to sexual
crimes.”
The court told Jones that, in its view, Jones had already had a “second
chance,” and he violated that chance. The court stated that even if Jones had a “clean
record,” it would still send him to prison based on the seriousness of Jones’s
conduct.
The court imposed its sentence and made the required consecutive
sentence findings on the record. The court stated:
[C]onsecutive sentences are necessary to protect the public from future
crime or to protect the offender of the consequence of the consecutive
sentences to punish the offender, and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and
to the danger that he poses to the public if I make one of the following
three findings, and one of them is based on the criminal history.
And I think, Mr. Jones, your criminal history indicates and
demonstrates to me that consecutive sentences are necessary to protect
the public from future crime by you. Stated simply, given the second
sexual event, both serious, it should be consecutive. And the time
period involved here and the frequency as the facts support indicate a
continuing course of conduct which, as acknowledged by the defense,
is an ongoing issue. And I think that satisfies one of the other elements
that indicate that consecutive sentences are appropriate under this
circumstance as well. I only need one, and I think there are two.
After review, we conclude the trial court’s findings were sufficient.
The trial court is not required to explain its reasons for imposing consecutive
sentences beyond making the findings. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, at ¶ 14. And based upon the facts in the record that we have
already discussed, we further find that the record wholly supports the trial court’s
consecutive sentence findings.
Jones’s second assignment of error is overruled.
Judgment affirmed.
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 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 to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
KATHLEEN ANN KEOUGH, J., CONCUR