State v. Watts ( 2020 )

[Cite as State v. Watts, 2020-Ohio-3282.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108707
v. :
GREGORY WATTS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 11, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627798-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
Attorney, for appellee.
Christopher M. Kelley, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Gregory Watts, appeals his convictions and
sentence. He raises four assignments of error for our review:
1. Appellant’s convictions are against the manifest weight of the
evidence.
2. Appellant’s convictions are not supported by sufficient evidence.
3. The trial court erred in failing to merge appellant’s kidnapping and
aggravated murder convictions as allied offenses of similar import.
4. Appellant was denied the effective assistance of counsel when trial
counsel stipulated that appellant’s kidnapping and aggravated murder
convictions were not allied offenses of similar import.
Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
In April 2018, Watts was indicted on six counts: Count 1, aggravated
murder in violation of R.C. 2903.01(B); Count 2, aggravated murder in violation of
R.C. 2903.01(A); Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1);
Count 4, kidnapping in violation of R.C. 2905.01(A)(3); Count 5, murder in violation
of R.C. 2903.02(B); and Count 6, felonious assault in violation of R.C. 2903.11(A)(1).
Watts waived his right to a jury trial, and the case proceeded to the bench. The state
informed the trial court that it was proceeding on alternate theories that Watts was
complicit in the crimes or was the principal offender. The state presented the
following evidence to the trial court.
In the early morning hours of March 6, 2018, the victim in this case
was beaten to death in the home of Steven Dabrowski. The victim had been living
with Dabrowski for approximately one year before her death. Dabrowski discovered
the victim’s body in his laundry room when he arrived home from work around 1:45
p.m. that day. The medical examiner said that the victim had been dead for several
hours when she was found. The victim had been beaten so badly that her facial
bones had separated from her skull bones. She also had injuries all over her body,
including defensive injuries to the back of her left hand and wrist. The medical
examiner testified that the victim had several drugs in her system when she was
killed, including enough fentanyl in her blood that it could have killed her, but he
said that was not the cause of her death. The medical examiner ruled her death to
be a homicide as a result of blunt force trauma to her neck and head.
Dabrowski stated that when he left for work around 4:30 a.m., he
thought he saw the victim sleeping under some blankets on the couch. But he
admitted that he only saw the blankets and did not actually see the victim.
Dabrowski worked at the post office in downtown Cleveland and normally left for
work around that time. When he got home from work, the door to his house was
locked. The victim had a key to his house, so he did not think anything of the door
being locked. He said that there were no signs of forced entry into his home.
Dabrowski discovered that his 32-inch television and two cameras were missing.
The victim’s key to Dabrowski’s house was never found.
Police obtained surveillance footage from a nearby business for the
hours of 4:00 a.m. to 2:00 p.m. on March 6, which showed Dabrowski’s vehicle
leaving his home at the time he said he did and returning at the time he said he
returned. Dabrowski called 911 soon after arriving home. Police also swabbed and
photographed Dabrowski’s hands, which had no injuries on them. They also towed
his vehicle and processed it for evidence, eventually eliminating Dabrowski as a
suspect.
The surveillance footage further showed that approximately two
minutes after Dabrowski left for work, at 4:35 a.m. on March 6, another vehicle
pulled into his driveway. The footage shows that vehicle leaving Dabrowski’s house
at 5:48 a.m. Police were never able to determine what kind of vehicle pulled into
Dabrowski’s house at 4:35 a.m., although they attempted to do so. All they could
determine was that it was a “boxy” vehicle. Based upon the surveillance footage and
the medical examiner’s conclusion that the victim had been dead for at least several
hours, police surmised that the victim was killed between 4:35 a.m. and 5:48 a.m.
Detective Raymond Diaz, the lead detective assigned to the case,
testified that he and his partner, Detective Jody Remington, arrived at the scene
around 2:30 p.m. on March 6. Police officers from the crime scene investigation
unit took photos of the crime scene and gathered evidence.
Detective Diaz and Detective Remington investigated other suspects
after they eliminated Dabrowski, including the victim’s boyfriend, Thomas
Maczadlo. Police also investigated Ricardo Dean (also known as “JR”) and his
associate, Donnell Palmore. Detective Diaz testified that police received an
anonymous call from a woman who told them that Dean punched her and
threatened her that if he caught her buying drugs from someone else, he would “kill
her like [the victim].” Dean also drove “an older-style white mini-van,” which was
similar to the “boxy” vehicle they saw on the surveillance footage. Despite this tip
and the “older-style white mini-van,” Detective Diaz said that they eliminated Dean
because his DNA was not found at the scene and they could not find any connections
relating Dean to the victim. Police also ruled out Palmore as a suspect.
Detective Diaz explained that two days after the victim was murdered,
he received another anonymous tip. The tipster turned out to be Terry Harrah. As
a result of the tip, Detective Diaz spoke with Terry Harrah and Michella Belle.
Belle testified that she had known Watts since 2010. Around the time
of the victim’s murder, Belle said that Watts was living with her part-time. She said
that when he was not at her house, he stayed at empty houses that he was painting.
Belle testified that Watts was “the best friend [she] ever had” in her “whole 59 years.”
Belle stated that Watts was a “wonderful person, * * * kind and lovable,” whether he
was “high or sober.” Belle loved Watts and she “never” wanted to “see anything bad
happen to him.”
Belle testified that Watts was at her house and trying to leave so that
he “could get high.” Although Belle did not state when this happened, other evidence
established that it was the evening of March 6, 2018. Belle testified that she was
“trying to block him and hold him in the house.” She said that Watts told her that
he “killed a girl.” She said that although she did not know that a woman had been
murdered, it had been on the news and “most people knew about it.” She said Watts
“just threw that up in the air” to get out of her house. After he told her that he “killed
a girl,” he left. After he left, she saw on the news that a woman had been murdered.
Belle stated that she did not believe Watts when he said that he killed
someone. She said that he would not do something like that.
After Watts left her house, Belle called Terry Harrah, who was one of
Watts’s bosses. She said that Watts is a painter and works “with a lot of different
people painting houses.” Belle testified that she called Harrah because he was
worried that he had not seen Watts for a couple of days. Belle explained that it was
normal for Watts to disappear for several days. Belle stated that she also called
Harrah because she knew that Harrah and Watts were close; Watts always told Belle
that Harrah was “like family to him.” Belle testified that she felt bad that she told
Harrah what Watts told her because if she had not done so, then she would not have
to testify “against [her] great friend.”
Belle testified that a few days later, Watts came back to her house and
told her that he did not kill anyone. Belle said that Watts told her that he was just
trying to get out of her “house to get high.” Belle stated that she did not call police
because she did not believe that Watts murdered anyone, and Watts “cleared it up
and said he didn’t do it.”
Belle testified that about a week after Watts told her that he “killed a
girl,” he went into “rehab.”
Belle stated that she had talked to Watts since he had been in jail. She
agreed that Watts told her that she did not have to go to court to testify against him,
but Belle said that Watts only told her that because he was worried about her health
because she is “a very sick person.”
Belle did not know the victim or Demetrius Smith (whose DNA was
found on the victim’s left hand).
Belle testified that when police interviewed her, she told them that
she did not want to be involved in the case. She stated that she told police that
because she did not know what happened and she did not “want to be a part of
hurting [her] good friend, Gregory Watts.” She “prayed to god” that her testimony
did not hurt Watts.
Harrah testified that he has been a painting contractor since 1985. At
the time of trial, he was working a job in Philadelphia, Pennsylvania. He drove to
Ohio to testify in Watts’s trial. When he was done testifying, he was going to drive
back to Philadelphia to complete his job.
Harrah stated that he had known Watts since the 1980s, soon after
Harrah started working. Harrah said that he considered Watts to be “his best
friend.” Harrah stated that Watts was an “excellent” worker. When he needed Watts
for a job, Harrah would “track him down in the neighborhood.” Harrah said that
Watts was not technically his employee, but Harrah would pay him to do a job.
Harrah rated Watts a “15” as a worker on a scale of one to ten. Harrah “was not very
happy” about testifying in Watts’s trial.
Harrah testified that Watts had a “crack cocaine” problem. Watts had
admitted it to him.
Harrah said that he lived in Florida. Over the years, he and Watts had
“dinner a couple of times down in Florida,” but Harrah said that he does not
normally “fraternize like that.” Harrah explained that he had helped Watts in the
past when he got in trouble, including paying Watts’s bond to get out of jail, giving
him money when he needed it, and finding more work for him.
Harrah testified that in early March 2018, he was working on a project
in Willoughby and Mentor. Harrah said that Watts worked with him on both
projects. He said that although Watts was “a solid man,” Watts had not been himself
during the two weeks before the murder. Harrah could tell that Watts’s “crack
usage” was up, and although Watts was still performing on the job, he appeared to
be “very tired” and not thinking properly. Harrah said that Watts had “a lot of slip-
ups” during that time.
Harrah knew that Watts was “staying” with Belle. Harrah was not
friends with Belle, but she was an acquaintance of his. Harrah said that Watts gave
Belle’s phone number to Harrah so that Harrah could get in touch with Watts “when
[Watts’s] phone would disappear.”
Harrah said that he bought Watts’s cell phone for him. Harrah stated
that Watts’s phone would disappear sometimes. Harrah figured that when Watts
purchased crack cocaine, he would give the dealer his phone to get more drugs.
Harrah explained that he had purchased five phones for Watts in the previous six to
eight months, all under Watts’s name, and they all disappeared.
Harrah testified that he had not be able to find Watts around the time
of the murder. He called Watts’s phone at least 3o times and did not receive an
answer. Harrah then called Belle to ask her if she had seen him. Three days later,
Belle called Harrah. Harrah said that she was very upset. She told him what Watts
had said to her and gave her the victim’s name. He did not think anything of it until,
as Belle told him the victim’s name, his significant other saw on Facebook that the
victim had been murdered.
The next day, on March 7, 2018, Harrah said that he picked Watts up
at a house on “Maurice off of East 55th.” He had picked Watts up from this house
in the past. At some point that day, he spoke with Watts about the murder. Harrah
was “mortified.” Harrah told Watts to “level with [him]” and asked him, “What the
hell is going on here?” Harrah testified that Watts told him, “We fucked the bitch
up.” Harrah asked him why. Harrah said that Watts replied, “Took my phone and
my money, and it’s happened on more than one occasion.” Harrah said that he could
tell by Watts’s “body language, his attitude, and everything else” that “something
was wrong.” He then continued to work with Watts and talk to him about what had
happened. Harrah said that based on Watts’s answers, he knew that Watts had
killed the woman. Harrah eventually told Watts that they were “done” and that he
never wanted to see him again. Harrah stated that it was “very difficult” to say that
to Watts because he cared about him.
Harrah testified that he knew that he had to call the police. He said
that he told Detective Diaz everything that he knew.
On cross-examination, Harrah agreed that if Detective Diaz’s
summary report of his interview with Harrah stated that Harrah told him, “The bitch
did me wrong,” and not, “We fucked the bitch up,” that the report was probably
correct. Harrah testified, “To me, they both sound the same.” Harrah agreed that
Watts admitted to killing the victim on March 7, 2018, but that the next day, on
March 8, Watts denied being involved in the homicide.
After speaking with both Harrah and Belle, Detective Diaz obtained
an arrest warrant for Watts. Detectives Diaz and Remington interviewed Watts.
Watts denied that he killed the victim but admitted that he did drugs with her. He
told police that the last time he saw the victim was two days before she got murdered.
Watts also told police that his cell phone was stolen before the murder. Watts stated
that the last time he saw his phone was the last time he saw the victim, two days
before her death. Watts told the detectives that he had been at a house on Maurice
Avenue for several days around the time of the murder.
In September 2018, Detective Diaz testified that they received a
CODIS hit on the DNA swab taken from the back of the victim’s left hand. It
matched that of Demetrius Smith. Smith had gotten out of jail in March 2017 and
was arrested on March 8, 2018, in another case. Detective Diaz interviewed Smith
on September 19, 2018, the day that Smith was sentenced to nine years in prison for
aggravated robbery in another case. Smith denied knowing the victim but admitted
that he knew Watts from the neighborhood. Smith gave Detective Diaz several
phone numbers, including his, his mother’s, and his girlfriend’s. Detective Diaz
stated that they were still investigating Smith regarding his involvement in the
victim’s murder.
Detective Diaz testified that police never found the victim’s or Watts’s
cell phones. Despite that, Detective Diaz obtained cell phone records for Smith, the
victim, and Watts. At first, he focused on the time just before and after the murder.
He later retrieved cell-tower records for Smith and Watts and cell phone records for
Watts from December 2017 to June 2018.
From these records, Detective Diaz found another phone number that
Smith’s, Watts’s, and the victim’s cell phones communicated with frequently.
Detective Diaz stated that he tried everything he could to determine who that
number belonged to, but he was never able to do so. He stated that he believed it
was a “burner” phone that drug dealers use so that police cannot trace who owns the
phone. He learned that the burner phone made frequent calls to Smith’s mother’s
cell phone and the cell phone belonging to Smith’s girlfriend, who was also the
mother of his child. Detective Diaz stated that the burner phone probably belonged
to Smith or someone close to him.
Detective Diaz testified that there was no activity for Watts’s, Smith’s,
or the victim’s cell phones between 4:35 and 5:48 a.m. on March 6, 2018. The last
call that the victim’s phone made was at 4:08 a.m. on March 6, 2018, to Watt’s
phone. The call lasted 263 seconds. Detective Diaz testified that in the 10 days
before the murder, the burner phone communicated with Watts 18 times and the
victim 19 times. In the hours before the murder, the burner phone also
communicated with Watts’s and the victim’s phones.
Detective Diaz explained that the cell phone records also show that
on March 5 and March 6, 2018, Harrah tried to call Watts. On March 6, 2018, Belle
tried to call Watts at 6:54 a.m. and Harrah tried to call him at 7:14 a.m. Detective
Diaz stated that the cell phone records show that Belle and Harrah continued to call
Watts most of the day on March 6, 2018.
Detective Diaz testified that someone continued to use the victim’s
phone after her death; it called the burner phone at 3:38 and 4:34 p.m. on March 6
and another number that he did not know at 4:08 p.m. that day (“the 338 number”).
Detective Diaz learned that a person in jail, Erin Finkl, called the 338 number on
March 6, 2018. Detective Diaz obtained the visitor log for Erin Finkl and learned
that someone named Frank Webb visited Erin Finkl in jail and used the 338 number
as his number on the visitor log. Webb also gave his address as a home on Maurice
Avenue, the same address where Watts told Detective Diaz he had been staying
around the time of the murder. During the March 6, 2018 phone call from Finkl to
Webb, Finkl asked Webb what was going on at the house, and Webb replied that
“Greg was there.” Detective Diaz was never able to interview Finkl or Webb because
they both died of drug overdoses before he was able to talk to them.
Detective Diaz testified that between December 2017 and May 2018,
Watts’s phone contacted the 338 number at least eight times, Smith’s number 11
times, and the burner phone 19 times.
Detective Diaz also obtained the cell-tower records for the victim’s,
Smith’s, and Watts’s cell phones. They showed that they were bouncing off of the
same cell phone tower a day before the murder and that tower was 0.7 miles from
the address on Maurice Avenue.
The state rested. Watts moved for a Crim.R. 29 acquittal, which the
trial court denied. Watts did not present any evidence on his behalf. Watts again
moved for a Crim.R. 29 acquittal. The trial court stated that it was having trouble
with “prior calculation and design” in Count 2 and that it would reserve judgment
on that issue until after closing arguments.
The trial court found Watts guilty of Counts 1 (aggravated murder), 3
(aggravated burglary), 4 (kidnapping), 5 (felony murder), and 6 (felonious assault).
The trial court also found Watts guilty of the lesser-included offense of murder
under Count 2 in violation of R.C. 2903.02(A).
The trial court found that Count 2 merged into Count 1, Count 6
merged with Count 5, and Count 5 merged with Count 1. The state elected for the
court to sentence Watts on Count 1. The trial court found that Counts 3 and 4 did
not merge. The trial court sentenced Watts to life in prison with parole eligibility
after 25 full years of prison for Count 1, 10 years for Count 3, and 10 years for Count
4. The trial court ordered that the sentences for Counts 1, 3, and 4 be served
concurrently. The trial court also imposed a mandatory five years of postrelease
control for Count 3 and a mandatory five years of postrelease control for Count 4. It
is from this judgment that Watts now appeals.
II. Sufficiency and Manifest Weight of the Evidence
In his first and second assignments of error, Watts argues that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence. Watts does not contend that the state failed to establish the
elements of each offense beyond a reasonable doubt. Rather, in both assignments
of error, Watts focuses his arguments on the state’s theory of complicity to commit
the crimes. Thus, we will limit our discussion to that of complicity.
“The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” State v. Thompkins,
78 Ohio St. 3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. As a
matter of appellate review, they involve different means and ends. Id. at 386-389.
They also invoke different inquiries with different standards of review. Id.; State v.
Smith, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668 (1997). The difference, in the simplest
sense, is that sufficiency tests the burden of production while manifest weight tests
the burden of persuasion. Thompkins at 390 (Cook, J., concurring).
“‘[S]ufficiency’ is a term of art meaning that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter of law.” Id. at 386, quoting
Black’s Law Dictionary 1433 (6th Ed.1990). When an appellate court reviews a
record upon a sufficiency challenge, “the relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus.
Unlike sufficiency of the evidence, a challenge to the manifest weight
of the evidence attacks the credibility of the evidence presented. Thompkins at 387.
Because it is a broader review, a reviewing court may determine that a judgment of
a trial court is sustained by sufficient evidence, but nevertheless conclude that the
judgment is against the weight of the evidence. Id., citing State v. Robinson, 162
Ohio St. 486, 487, 124 N.E.2d 148 (1955).
In determining whether a conviction is against the manifest weight of
the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so,
it must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine “‘whether in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’” Id., quoting
State v. Martin, 20 Ohio App. 3d 172, 485 N.E.2d 717 (1st Dist.1983). Reversing a
conviction as being against the manifest weight of the evidence and ordering a new
trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
R.C. 2923.02 sets forth the statute for complicity. It provides:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
(B) It is no defense to a charge under this section that no person with
whom the accused was in complicity has been convicted as a principal
offender.
The state presented the theory that Watts aided and abetted the
principal offender. To prove complicity by aiding and abetting, the state had to
prove beyond a reasonable doubt “that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of
the crime, and that the defendant shared the criminal intent of the principal. Such
intent may be inferred from the circumstances surrounding the crime.” State v.
Johnson, 93 Ohio St. 3d 240, 754 N.E.2d 796 (2001), syllabus. The criminal intent
of the aider and abettor “can be inferred from the presence, companionship, and
conduct of the defendant before and after the offense is committed.” In re T.K., 109
Ohio St. 3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13, citing Johnson.
Watts maintains that the state failed to prove that he had the same
criminal intent as the principal offender or that he intended to help the principal
offender. Watts asserts that the evidence established that it was Smith who beat the
victim and that his DNA was not found anywhere in Dabrowski’s home, despite the
fact that blood was spattered everywhere.
As with proof of any element of an offense, complicity may be proved
by circumstantial evidence, which has the same probative value as direct evidence.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, at paragraph one of the syllabus. Here,
the state presented evidence that Watts admitted to his friend on the day of the
murder that “he killed a girl,” and the following day, he admitted the same thing to
his boss. When Belle called Harrah to tell him what Watts told her, she gave the
name of the victim to Harrah. At the same time that Belle was telling him the
victim’s name, Harrah’s significant other also saw on Facebook that the victim had
been murdered and told Harrah about it.
Watts contends that his remark to Belle was “flippant,” and that he
only said it to her to get her out of his way so that he could leave her house and get
high. But it was clear from the transcript that Belle took Watts’s remark very
seriously and that she was not happy about testifying against Watts because she did
not want him to go to prison. It was also evident from the transcript that after
Harrah initially confronted Watts and Watts admitted that “we f*cked the bitch up”
or “the bitch did me wrong,” that Harrah continued to discuss the matter with Watts
throughout the day. Although Harrah could not testify as to what Watts said to him
about the murder, Harrah was positive after talking to Watts that Watts took part in
killing the victim. Harrah also had a hard time testifying against Watts because he
still cared about him.
Watts further contends that the state focused on “trying to
manufacture some kind of link between Smith and [Watts],” and “failed to fully
investigate obvious suspects.” Watts points to the fact that an anonymous caller
reported that Dean told her that if she purchased drugs from someone else, “he
would kill her like he did [the victim.]” What the caller said that Dean said, however,
was, “I’ll kill you like [the victim],” not that he actually killed the victim.
Nonetheless, police investigated Dean. They obtained Dean’s DNA, which did not
match any of the samples collected from the crime scene. Further, Detective Diaz
explained that police could not connect Dean to the murder through any of the other
evidence. Therefore, Dean was excluded as a possible suspect.
Watts further argues that the state’s case relies predominantly on
“metadata” obtained from cellular companies that merely suggested that Smith,
Watts, and the victim “were in contact with each other,” which he maintains was not
surprising because they all used drugs. We would agree with Watts if the state had
only presented the cell phone records, but the state also presented Belle and Harrah,
who testified that Watts told them that he participated in the murder. Moreover,
the cell phone records do not just show that Smith, Watts, and the victim were in
contact with each other. They also show that the victim was in close contact with
Smith and Watts in the days and hours preceding her murder.
Thus, although the state did not present direct evidence that Watts
aided and abetted Smith, it presented sufficient circumstantial evidence that he did.
We further find, after reviewing the record and weighing the evidence and all
reasonable inferences, considering the credibility of witnesses and determining
whether the factfinder clearly lost its way in determining that Watts was guilty of
aiding and abetting, we find that it did not.
Accordingly, Watts’s first and second assignments of error are
overruled.
III. Allied Offenses of Similar Import
In his third assignment of error, Watts argues that the trial court
erred when it did not merge his kidnapping and aggravated murder convictions. In
his fourth assignment of error, he argues that his counsel was ineffective for
stipulating that the offenses were not allied offenses. Watts contends that because
his trial counsel stipulated that the kidnapping and aggravated murder offenses
were not allied offenses, the trial court committed plain error.
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).
“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.” State v. Ruff, 143
Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. In Ruff, the Supreme Court
held that 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).
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.” Ruff at paragraph two of the syllabus.
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.
Aggravated murder under R.C. 2903.01(B) provides:
No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately
after committing or attempting to commit kidnapping, rape,
aggravated arson, arson, aggravated robbery, robbery, aggravated
burglary, burglary, trespass in a habitation when a person is present or
likely to be present, terrorism, or escape.
Watts was convicted of kidnapping under R.C. 2905.01(A)(3), which
states sets forth the elements of kidnapping as: “[n]o person, by force, threat, or
deception, * * * by any means, shall remove another from the place where the other
person is found or restrain the liberty of the other person * * * [t]o terrorize, or to
inflict serious physical harm on the victim or another[.]”
There is no question that Watts’s conduct in this case supports his
aggravated murder and kidnapping convictions. Therefore, we must determine if
any of the three Ruff factors are present such that the trial court could sentence
Watts on both offenses. In answering this question, we turn to a case that was
decided over 40 years ago, State v. Logan, 60 Ohio St. 2d 126, 397 N.E.2d 1345
(1979). In Logan, the Supreme Court held the following:
In 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), this court adopts the following guidelines:
(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;
(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.
Id., at the syllabus.
Watts contends that any restraint of the victim was “merely incidental
to her murder.” We disagree. The facts established that the victim was severely
beaten such that she “had many fractures” in her face. It was so bad that the victim’s
facial bones had separated from the rest of her skull bones. She also had injuries to
her scalp, neck, chest, abdomen, both arms and legs, and her upper back. She had
bruises, scrapes, and abrasions all over her body. Her nose and lips were sunken
into her head due to the fact that the integrity of her face had been compromised.
She had a pattern of small “dimples” all over her body, leading the medical examiner
to think that the perpetrators may have used an iron to beat the victim. The victim
also had a fracture to her “hyoid bone,” which is a “u-shaped bone right above the
larynx or the voice box,” due to the “impact from a blow” or strangulation.
Based upon the extent and severity of the victim’s injuries, we agree
with the trial court that Watts’s restraint of the victim was prolonged such that there
exists a separate animus sufficient to sustain separate convictions for kidnapping
and aggravated murder. Therefore, Watts’s aggravated murder and kidnapping
offenses were not allied offenses of similar import, and Watts’s trial counsel was not
ineffective when he stipulated to the same.
Watts’s third and fourth assignments of error are 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 out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded 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
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR