State v. Rose , 2014 Ohio 2929 ( 2014 )

[Cite as State v. Rose, 2014-Ohio-2929.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 JE 18
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
SOL ROSE, III )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 12 CR 32
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Atty. Jeffrey J. Bruzzese
Assistant Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Bernard C. Battistel
P.O. Box 803
Steubenville, Ohio 43952
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 26, 2014
[Cite as State v. Rose, 2014-Ohio-2929.]
WAITE, J.
{¶1} Appellant Sol Rose III appeals his felony convictions for aggravated
robbery and felonious assault from the Jefferson County Court of Common Pleas.
On appeal, Appellant raises four issues in three assignments of error: the weight of
the evidence against him, ineffective assistance of counsel, that his consecutive
sentences were contrary to law, and that his convictions were for allied offenses that
should have merged for sentencing purposes. Appellant’s arguments are without
merit and are overruled. His convictions are affirmed.
Factual and Procedural History
{¶2} Appellant was indicted on February 24, 2012 by the Jefferson County
Grand Jury on three counts: (a) aggravated robbery a first degree felony violation of
R.C. 2911.01(A)(3); (b) felonious assault, a first degree felony violation of R.C.
2903.11(A)(1); and (c) felonious assault, a second degree felony violation of R.C.
2903.11(A)(2). All three relate to an attack on Jason Plaugher in the early morning of
February 11, 2012. Appellant followed Plaugher from the Speedway gas station near
his house after observing the victim make a purchase and place over thirty dollars in
change in his wallet. On his way home from the Speedway, Plaugher realized he
was being followed and turned to confront Appellant, who initially denied that he was
following Plaugher. Plaugher continued home, but as he began to ascend the stairs
to his front door, he was pulled back down the stairs by the hood of his sweatshirt
and stabbed repeatedly from behind until his upstairs neighbor, Charles Barnhart,
threw a chair from his window and struck Appellant in the head. Appellant ran, taking
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with him Plaugher’s wallet and medication. Barnhart called 9-1-1 from his apartment
and then went to help the victim.
{¶3} Plaugher was treated for injuries to his head, neck, and back. He was
able to give a statement and turned his sweatshirt over to police as evidence.
Plaugher first identified Appellant as his assailant in a photo array and again in an in-
person line-up. Plaugher was confident in the identification because he had faced
Appellant when he confronted him about following Plaugher home.
{¶4} Appellant was tried by a jury and convicted in May of 2012. At
sentencing, the trial court merged Appellant’s two felonious assault convictions. The
state elected to proceed to sentencing on count two, the first degree felonious
assault conviction. The trial court sentenced Appellant to six years on count one,
aggravated robbery and five years on count two, felonious assault, for a total
sentence of eleven years. Appellant filed a timely appeal of his sentence.
ASSIGNMENT OF ERROR NO. 1
THE DEFENDANT-APPELLANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶5} In Appellant’s first assignment of error he challenges the jury’s decision
to convict him on aggravated robbery and felonious assault charges resulting from
the stabbing. On appeal, Appellant emphasizes the record reflects an absence of
DNA evidence, the weapon, and the victim’s belongings. Appellant also alleges that
there were contradictions in Plaugher’s testimony. According to Appellant, the fact
that Barnhart said the victim was “incoherent” after being stabbed fourteen times and
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that Plaugher testified that his recollection of the morning was impaired because he
lost so much blood and was taking pain medication should outweigh the evidentiary
value of his statements. Appellant believes we should ignore the conclusions of the
jury, and instead place more weight on the absence of certain types of evidence than
on the testimony of the various witnesses to the events of February 11, 2012.
{¶6} A challenge to the manifest weight of the evidence addresses not the
mere existence of evidence on each element, but the effect of that evidence in
inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Even where a reviewing court finds a verdict is supported by sufficient evidence, the
verdict may be found to be against the manifest weight of the evidence. Id. To
evaluate the manifest weight of the evidence, an appellate court reviews 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. at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). The “[w]eight 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 * * * the party having the burden
of proof will be entitled to their verdict, if [the jury], on weighing the evidence in their
minds, * * * shall find the greater amount of credible evidence sustains the issue
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which is to be established before them. Weight is not a question of mathematics * *
*’” (Emphasis sic.) Thompkins at 387. Although the reviewing court is sometimes
described as “the thirteenth juror” when conducting this review; the weight to be given
the evidence and the credibility of the witnesses are still primarily for the trier of fact
to determine. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
{¶7} In Appellant’s challenge to the evidence supporting his conviction, he
does not cite to any evidence in the record which may tend to exonerate him.
Instead, he relies on the fact that DNA analysis of a pair of Appellant’s pants did not
reveal genetic traces of the victim, the fact that the chair that allegedly ended the
attack was not examined for DNA evidence, the fact that the victim’s belongings were
not recovered, and the fact that the weapon was not recovered. Appellant does not
explain why the absence of this evidence should be given more weight than the
testimony presented at trial, nor does he offer any legal support for this conclusion.
{¶8} The testimony of Mr. Plaugher, the victim, reveals that he was at the
Speedway in the early hours of February 11, 2012. The victim described both the
Speedway and the surrounding area as reasonably well lit due to streetlights and
lighting on nearby properties, including Steubenville High School. He said that he
purchased some soda with cash and received more than $30.00 in change while
Appellant stood near enough to view the transaction. The victim said that he left the
Speedway and noted that Appellant seemed to be following him as he travelled to his
home. At one point, concerned by Appellant’s continued presence on his route
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home, Plaugher addressed Appellant face to face and told him that since he did not
belong there, he should not be in the area. (Tr. Vol. II, p. 244.)
{¶9} Plaugher continued toward his apartment. As he started up the front
stairs, he was attacked from behind and to the left. His attacker pulled him
backwards using his hood, and stabbed him so violently that initially Plaugher
thought he was being punched. The attacker demanded the victim’s wallet and
continued to assault him until an upstairs neighbor threw a chair out of the window,
striking the attacker on the head. (Tr. Vol. II, p. 245.)
{¶10} When the police and an ambulance responded, Plaugher was able to
give a description of Appellant. The victim was able to identify Appellant from the
Speedway video by his clothing and confirmed that Appellant was the man he
confronted on his way home. Plaugher later picked Appellant’s photo out of a book,
identified him in person in a line-up, and directly identified Appellant at trial.
According to Plaugher’s testimony, he has trouble recalling exactly the events of the
night, but remembers being “belligerent” and cursing when being questioned at the
scene. (Tr. Vol. II, p. 252.) Plaugher also described the extent of his injuries, and the
lingering effect of damage to his head, nerves, and organs. Although Appellant
refers to “numerous” inconsistencies in the victim’s testimony, Appellant does not
specifically identify a single inconsistency. A review of the various portions of the
transcript cited by Appellant reflect repetitive and, at times, unclear questioning, but
do not reflect inconsistent or contradictory testimony by Mr. Plaugher, himself.
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{¶11} The Ohio Supreme Court has stated in Thompkins, supra, that when a
reviewing court reverses a trial court judgment as against the weight of the evidence,
the court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of
the conflicting testimony.” Id. at 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.
2211 (1982). “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. Appellant does not identify any conflict or deficiency in the record that would
support a conclusion that the jury “in resolving conflicts in the evidence * * * clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed.” Id. Appellant’s first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE FAILURE OF DEFENSE COUNSEL TO SECURE COMPLETE
CROSS-EXAMINATION AS WELL AS OTHER DEFICIENCIES
RESULTED IN PREJUDICIAL ERROR AND INEFFECTIVE
ASSISTANCE OF COUNSEL.
{¶12} Appellant contends that his counsel’s cross-examination of the state’s
law enforcement witnesses was unproductive and limited, that the testimony of a
defense witness was undermined by her personal relationship with counsel, and that
his counsel’s confusion when attempting to admit exhibits into evidence resulted in
ineffective assistance. To prevail on a claim of ineffective assistance of counsel,
Appellant must show not only that counsel's performance was deficient, but also that
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he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674, (1984); see also State v. Williams, 99 Ohio St.3d 493,
2003-Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance
falling below an objective standard of reasonable representation. Strickland at 687-
688. “Prejudice,” in this context, means a reasonable probability that but for
counsel's errors, the result of the proceeding would have been different. Id. at 694.
{¶13} The United States Supreme Court originally explained in Strickland v.
Washington that an “ineffectiveness claim * * * is an attack on the fundamental
fairness of the proceeding whose result is challenged,” and that, “the ultimate focus
of inquiry must be on the fundamental fairness of the proceeding whose result is
being challenged.” Id. at 697, 670. A defendant/appellant’s burden when
challenging the effectiveness of counsel is to demonstrate that some action or
inaction by counsel operated to undermine or call into question the integrity of the
process that resulted in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E. 2d 905 (1999). When evaluating the performance of counsel, “courts ‘must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’” State v. Wesson, 137 Ohio St.3d 309, 2013-
Ohio-4575, 999 N.E.2d 557, ¶81. “Judicial scrutiny of counsel’s performance must
be highly deferential, and a fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland at 669. “It is all too tempting for a
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defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689.
{¶14} Although Appellant notes the two prongs of the Strickland test, his
arguments do not address prejudice, the second prong of the test. Because
Appellant has failed to connect any of the alleged deficiencies of counsel to actual
evidence of prejudice suffered by him, even if we were to conclude that counsel’s
performance was deficient, Appellant has not satisfied his burden under Strickland.
Regardless, Appellant has not demonstrated that defense counsel’s performance
was deficient. The decisions and circumstances challenged by Appellant: counsel’s
decision to use law enforcement testimony rather than further victim testimony to
establish the extent of injuries; the decision not to raise a possible discrepancy in the
early descriptions of the pants worn by the attacker; the fact that defense counsel
knew a defense witness personally; and that defense counsel appeared confused
when seeking to admit some of the exhibits, do not undermine or call into question
the integrity of the process that resulted in conviction. At worst, many of the
decisions Appellant complains of appear to be trial tactic on the part of his counsel.
Appellant has not identified any action or omission by defense counsel that rises to
the level of a deficiency, and completely fails to address or identify any prejudice to
the defense resulting from counsel’s actions. Appellant’s second assignment of error
is without merit and is overruled.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO
CONSECUTIVE TERMS OF IMPRISONMENT.[sic]
{¶15} In his third assignment of error Appellant combines two separate
issues. He challenges the conclusions reached by the trial court concerning the
seriousness and recidivism sections of R.C. 2929.12 and he alleges that his
aggravated robbery and felonious assault convictions are allied offenses of similar
import and should have been merged for sentencing purposes.
{¶16} With regard to Appellant’s R.C. 2929.12 arguments, after hearing
extended discussion from the state, defense counsel, and Appellant concerning his
prior offenses, convictions, sentences, probation, drug use, and other criminal
activities, the trial court stated:
I then have to consider the factors that are outlined in the Ohio Revised
Code as has been indicated by the attorneys as to whether your
conduct would be more or less serious than someone charged with the
same or similar offense.
Under the more serious factors I do have to find that there was serious
physical harm. There were multiple stab wounds. * * *
***
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[t]here were multiple stab wounds. There’s permanent injury that has
been caused to the victim in the way of his vision impairment and by
way of scarring.
Under the less serious factors, none of those apply. Therefore, the
more serious factors have to outweigh the less serious factors.
Then when I look at the recidivism likely and not likely factors, that is
the factors which would indicate that it’s more or less likely that you will
commit other offense, I do have to find that you have the prior criminal
convictions, three prison terms as you have explained.
And under the recidivism not likely factors, none of those apply to you.
So, the recidivism likely factors also outweigh the not likely factors.
***
I am going to find that your criminal history shows that consecutive
terms are needed to protect the public and that further to sentence you
only on one of the charges and to make them concurrent would not
adequately reflect the seriousness of the crimes that have been
committed.
(Sent. Tr., pp. 30-33.) The trial court’s judgment entry reflected these findings:
The Court further finds that a prison sentence is consistent with the
purposes and principles of sentencing under R.C. §2929.11 because a
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prison sentence is commensurate with the seriousness of the offender’s
conduct and its impact on the victim, because it is reasonably
necessary to deter the defendant in order to protect the public from
future crime, and because it would not place an unnecessary burden on
governmental resources.
The court finds that under ORC §2929.12(B) that the victim suffered
serious physical harm, including multiple stab wounds, permanent
impairment of the victim’s vision; and scarring * * *
[T]he recidivism likely factors outweigh the not likely factors * * *
the offense was so great or unusual that a single term does not
adequately reflect the seriousness of the defendant’s conduct and
defendant’s criminal history shows consecutive terms are needed to
protect the public in that the defendant assaulted the victim from the
rear, began stabbing the victim, stole the victim’s wallet and only
ceased stabbing the victim when a neighbor of the victim threw a chair
at the defendant from a second story window.” (Emphasis sic.)
(6/8/12 J.E., p. 2.) Appellant now contends that the trial court should have given
greater weight to statements made during the sentencing hearing concerning
Appellant’s history of drug use and possible mental disability. Appellant also argues
that the trial court should have recognized Appellant’s continued assertions of
innocence while expressing sympathy for the physical harm suffered by Plaugher as
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remorse, weighing in favor of finding, pursuant to R.C. 2929.12(E)(5), that he felt
genuine remorse for the crimes.
{¶17} Appellant did not object to the imposition of consecutive terms during
his sentencing hearing, and has therefore waived all but a plain error review of his
sentence. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955,
¶152, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶377.
As we have previously noted, individuals who are sentenced after September 30,
2011 are subject to the version of R.C. 2929.14(C)(4) revised by H.B. 86, even if a
plea was entered or verdict returned prior to that date. State v. Williams, 7th Dist. 11
MA 185, 2014-Ohio-1015, ¶27; State v. Smith, 7th Dist. 12 MA 168, 2014-Ohio-1398,
¶19.
{¶18} A trial court’s decision to impose consecutive sentences is reviewed by
us under the Kalish two-step approach. Williams and Smith, supra. The first step in
our analysis is to determine the applicable legal standard, which in this instance is
contained in R.C. 2953.08 “Appeals based on felony sentencing guidelines.” R.C.
2953.08(G)(2) requires:
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.
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
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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:
(a) That the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 * * * whichever, if any, is
relevant;
(b) That the sentence is otherwise contrary to law.
{¶19} Although Appellant is not specific, he apparently believes the record
does not support the sentencing court’s findings. As reflected above, the trial court in
this instance specifically and exhaustively considered the relevant statutes, the
principles and purposes of sentencing, and the information provided by defendant
prior to the imposition of sentence. The court concluded that the viciousness of the
crime, Appellant’s criminal history, which includes repeated instances of criminal
violence, refusal to accept responsibility for either the crime or his criminal history,
and the absence of any clinical evidence of drug addiction, necessitated a greater
penalty. (Sent. Tr., p. 24.) This record supports the trial court’s conclusions.
Appellant’s sentences are not otherwise contrary to law. Nothing in this record or as
raised by Appellant on appeal suggests that the trial court abused its discretion in
imposing consecutive sentences. Appellant’s R.C. 2929.12 argument against
consecutive sentences is overruled.
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{¶20} The law pertaining to allied offenses in Ohio is continually evolving,
however the Supreme Court’s plurality decision in State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, contains the standard applied by the
majority of Ohio appellate courts. “Allied offenses of similar import” are defined by
R.C. 2941.25, which 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 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.
Although the statute has remained unchanged by the legislature since its passage in
1972 (effective January 1, 1974), Ohio jurisprudence has shifted from a contextual
analysis of the facts of each individual case, to an objective comparison of the
statutory elements of each offense, before this most recent return, in Johnson, to a
fact-driven analysis. Johnson, supra.
{¶21} Pursuant to Johnson, a trial or reviewing court determines whether the
“offenses are allied offenses of similar import” by applying two stages of analysis.
Johnson, supra, ¶48. First, the court determines “whether the offenses were
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committed by the same conduct,” and “whether it is possible to commit one offense
and commit the other with the same conduct” but not “whether it is possible to commit
one without committing the other.” (Emphasis sic.) Id. at ¶47-48.
{¶22} If the answer to both questions is “yes,” and 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.”
Id. at ¶48. If, on the other hand, “the court determines that the commission of one
offense will never result in the commission of the other,” then the offenses are not
allied and do not merge. (Emphasis sic.) Id. at ¶51.
{¶23} The analysis does not stop there, however. If the court identifies
offenses of similar import, it must consider whether the offenses were committed
separately, or if the defendant had separate animus for each offense. Id. at ¶51. If
the offenses were committed separately or there was separate animus for each, they
remain separate offenses for sentencing purposes. Id. When deciding whether to
merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review
the entire record, including arguments and information presented at the sentencing
hearing, to determine whether the offenses were committed separately or with a
separate animus. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982,
syllabus.
{¶24} Because the test for allied offenses is now both case and fact specific, it
“may result in varying results for the same set of offenses in different cases.”
Johnson at ¶52. An “appellate court reviews the legal conclusion of whether the
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offenses are allied using a de novo standard, but because the trial judge is the fact-
finder, the trial court’s determinations as to the facts are not reviewable de novo.”
State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶30. “In
fact, the appellate court should defer to the factual findings of the trial court, provided
they are supported by some competent, credible evidence.” Id.{¶25} Appellant’s argument in support of this final argument does not address
the Johnson test or any other legal analysis or standard. Instead, Appellant asserts
that because a “theft offense” is the only distinguishing factor between the two
criminal statutes, his offenses should merge for sentencing purposes. As Appellant’s
own cursory analysis establishes, the elements of the crimes do not correspond to
such a degree that the commission of one will necessarily result in the commission of
another. Appellant was convicted of aggravated robbery, a violation of R.C.
2929.11.01(A)(3), which criminalizes the commission of a theft offense while armed
with a deadly weapon: in this instance, a knife. Appellant was also convicted of
felonious assault, a violation of R.C. 2903.11(A)(1) which criminalizes the knowing
physical harm of another with a deadly weapon, a knife, as well as knowingly doing
serious physical harm to another. Appellant was guilty of felonious assault under
either theory: he caused physical harm to another with a deadly weapon and in so
doing caused serious physical harm.
{¶26} As the Tenth District Court of Appeals recently noted, “the dominant
animus for aggravated robbery is theft.” State v. Michael, 10th Dist. No. 13AP-436,
2014-Ohio-125, ¶12. The “dominant animus for felonious assault,” on the other
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hand, is “the doing of physical harm.” Id. Appellant feloniously assaulted Mr.
Plaugher by repeatedly stabbing him in the head, neck, and kidneys with a knife.
Appellant committed aggravated robbery when he took Plaugher’s wallet while
holding a knife. While the knife is a common element of the two crimes, Appellant’s
different conduct satisfied the elements of each offense. Moreover, because the
animus for each crime is separate, R.C. 2941.25 does not apply to require merger.
Appellant’s third assignment of error is without merit and is overruled in its entirety.
Conclusion
{¶27} Appellant’s convictions were not against the manifest weight of the
evidence. Appellant received effective assistance of counsel. Appellant’s
convictions were not allied offenses and do not merge for sentencing purposes. The
trial court properly applied controlling law when imposing consecutive sentences.
Appellant’s sentence is not otherwise contrary to law or an abuse of discretion.
Appellant’s three assignments of error are without merit and are overruled. The
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.