State v. Lovato ( 2014 )

[Cite as State v. Lovato, 2014-Ohio-2311.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25683
v. : T.C. NO. 06CR185
DAVID P. LOVATO : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of May , 2014.
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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARRIE WOOD, Atty. Reg. No. 0087091, Assistant State Public Defender, 250 East Broad
Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
..........
FROELICH, P.J.
{¶ 1} David P. Lovato was convicted after a jury trial in the Montgomery
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County Court of Common Pleas of four counts of rape by force or threat of force (Counts 1,
4, 5, and 6), two counts of felonious assault (Counts 3 and 8), two counts of kidnapping
(Counts 2 and 7), and one count of intimidation of a crime victim or witness (Count 9).
Counts One through Eight each contained repeat violent offender and sexually violent
predator specifications. The kidnapping and felonious assault counts also contained a
sexual motivation specification. The trial court sentenced Lovato to an aggregate term of
76 years to life in prison.
{¶ 2} In this delayed appeal, Lovato claims that the trial court erred in failing to
merge allied offenses of similar import, that his attorney rendered ineffective assistance by
failing to ask the court to merge allied offenses of similar import, that the trial court should
have suppressed his confession, and that there was insufficient evidence to support his
conviction for intimidating a witness. For the following reasons, the trial court’s judgment
will be affirmed.
I. Allied Offenses of Similar Import
{¶ 3} Lovato’s first assignment of error claims that “the trial court committed plain
error when it imposed separate sentences for allied offenses of similar import.”
{¶ 4} R.C. 2941.25, Ohio’s allied offense statute, provides that:
(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
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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.
{¶ 5} “When 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.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
syllabus.1 The Ohio Supreme Court explained:
* * * [T]he 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. * * * 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.
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.” * * *
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
1
The State argues that Lovato’s allied offense argument should be reviewed under State v. Rance, 85 Ohio St.3d 632,
710 N.E.2d 699 (1999), because Lovato did not timely appeal his conviction and thus his case had become final. We have allowed
Lovato to pursue a delayed direct appeal from his conviction, and we conclude that it is appropriate to apply the supreme court
authority in effect at this time.
[Cite as State v. Lovato, 2014-Ohio-2311.]
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.
(Citations and quotations omitted.) Johnson at ¶ 48-51.
{¶ 6} Lovato’s felony convictions stem from two separate incidents – one
involving H.C. and the other involving T.M. – in which Lovato kidnapped, assaulted, and
raped the complainant. Lovato claims that the kidnappings were incidental to the rapes and
that the felonious assaults were incidental to the kidnappings. He asserts that the charges
relating to each incident should be merged as allied offenses of similar import.
{¶ 7} According to the evidence at trial, shortly before midnight on January 16,
2006, H.C. drove to the Foundry night club in Dayton to socialize with two friends. While
there, a man wearing a white suit and a fedora introduced himself as MJ 3000; the man was
later identified as Lovato. Lovato told H.C. that he took photographs, and he offered to take
one of her. H.C. agreed to have her picture taken, but she told Lovato that she had a
boyfriend. As the night club was closing, Lovato asked H.C. for a ride home. H.C. agreed
because she “was being friendly” and Lovato said he lived “right up the street.”
{¶ 8} H.C. was unfamiliar with the Dayton streets, and Lovato directed her farther
away from night club than she expected. Lovato eventually directed her to stop in an alley
and repeatedly invited her inside his house. When H.C. declined, Lovato began punching
H.C. in the face and told her that she had three seconds to get in the back seat of the car.
H.C. complied, but Lovato punched her three or four more times. H.C.’s nose was broken
by Lovato’s blows. Lovato told H.C. to remove her pants and to lay on her stomach, and he
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then vaginally raped her with his penis. Lovato also tried to lick H.C.’s vagina and anus.
Lovato asked H.C. to perform oral sex on him, but she told him that she did not feel well.
Lovato told H.C. to “talk dirty” to him, and he alternated between threatening her and saying
that he wanted to have children with her. H.C. testified that the ordeal lasted for two and a
half to three hours. After Lovato was finished, he asked for H.C.’s phone number and for a
hug. Lovato allowed H.C. to drive away from the alley at approximately 7:00 a.m. on
January 16. Lovato was ultimately charged with one count each of rape, kidnapping, and
felonious assault related to this incident.
{¶ 9} At approximately 8:00 p.m. on that same day (January 16), T.M. got off a
bus on North Main Street, between Hudson and Fairview Avenues, in Dayton, where she had
arranged to meet her boyfriend. While she waited, T.M. asked someone where she could
purchase cigarettes and was told to try the nearby United Foods store. T.M. spoke for a
couple of minutes with a man inside United Foods; he introduced himself as MJ 3000 and
was later identified as Lovato. T.M. walked out of the store and smoked a cigarette; Lovato
soon followed and talked with T.M. Lovato told T.M. that she “should not be out there by
herself. There’s lots of rapists and pedophiles in the area.” Lovato said that if T.M. would
go with him to drop off his cell phone at his sister’s house, he would wait with her for her
boyfriend at the bus stop. T.M. went to Lovato’s sister’s home, stayed for ten minutes, and
then walked with Lovato back to the bus stop.
{¶ 10} T.M.’s boyfriend arrived on a bus, and T.M. introduced him to Lovato.
Lovato assured the boyfriend that he had looked out for T.M. until he (her boyfriend) got
there. T.M. and her boyfriend tried to walk away from Lovato, but Lovato followed. The
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boyfriend decided to go into a nearby Rite Aid while T.M. went back to the bus stop with
Lovato. As T.M. and Lovato walked passed the United Foods store, Lovato hit T.M. in the
face and side of the head. T.M. lost consciousness. When she came to, Lovato was
dragging her by her coat hood into a garage in the alley between Hudson and Norman
Avenues. In the garage, Lovato told her to pull down her pants so he could “smell her.”
T.M. tried to run out of the garage, but Lovato caught her, choked her until she passed out,
pulled down her pants and underwear, and dragged her back into the garage. Lovato pushed
her face into a shelving unit and began to masturbate. He then raped T.M. anally and
vaginally with his penis, and put his fingers inside her vagina and anus. Lovato told T.M.
that he ejaculated eight times. When he was finished, Lovato walked T.M. back to the bus
stop. At approximately 10:00 p.m., while at the bus stop, T.M. contacted her boyfriend’s
father and asked him to come get her. Lovato was later charged with three counts of rape
and one count each of kidnapping and felonious assault related to his actions toward T.M.
{¶ 11} At the outset, we note that each of the felonious assault and kidnapping
offenses contained a sexual motivation specification, and the jury found that Lovato
committed these offenses “for the purpose of gratifying his sexual needs or desires.” The
Ohio Supreme Court has interpreted the term “animus” to mean “purpose or, more properly,
immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). “If
the defendant acted with the same purpose, intent, or motive in both instances, the animus is
identical for both offenses.” State v. Lewis, 12th Dist. Clinton No. CA2008-10-045,
2012-Ohio-885, ¶ 13; see also State v. Beverly, 2d Dist. Clark No. 2011 CA 64,
2013-Ohio-1365, ¶ 42. Considering the sexual motivation finding with respect to the
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kidnapping and felonious assault charges, Lovato reasonably argues that he acted with a
single animus in committing the rapes, kidnappings, and felonious assaults.
{¶ 12} In our view, the sexual motivation finding does not necessarily require a
conclusion that the felonious assault, rape, and kidnapping offenses for each victim must
merge, because such a conclusion fails to consider whether the kidnappings, felonious
assaults, and rapes were committed by the same conduct.
{¶ 13} The Supreme Court of Ohio stated that a separate animus for kidnapping
exists where (1) “the restraint is prolonged, the confinement is secretive, or the movement is
substantial so as to demonstrate a significance independent of the other offense,” or (2) “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.” State v. Logan, 60
Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus; see also State v. Rucker, 2d Dist.
Montgomery No. 24340, 2012-Ohio-4860, ¶ 52. Although focused on the animus aspect of
the allied offense analysis, these factors are also reasonable considerations for determining
whether the defendant committed kidnapping as separate conduct from other offenses. See
State v. Ware, 63 Ohio St.2d 84, 406 N.E.2d 1112 (1980).
{¶ 14} In Ware, the defendant and the minor-complainant were at the home of the
complainant’s friend. When the complainant was unable to find a telephone to request a
ride home, the defendant offered to let her use the telephone at his home. The complainant
then accompanied the defendant to his residence, which was a substantial distance away.
Upon getting there, the defendant said that he did not have a telephone and began making
advances toward the complainant. When the complainant resisted, the defendant carried her
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upstairs and raped her. The Supreme Court commented that the rape and kidnapping might
be allied offenses if the only facts were that the defendant forcibly moved the complainant
from the lower level of the home to the upstairs bedroom. Id. at 87. The court held,
however, “that there was an act of asportation by deception which constituted kidnapping,
and which was significantly independent from the asportation incidental to the rape itself.
The two crimes were committed separately.” Id.
{¶ 15} Lovato first claims that the kidnappings were incidental to the rapes.
Beginning with H.C., the State argues, and we agree, that Lovato lured H.C. from the
nightclub to the alley behind Lovato’s home, and that this conduct was significantly
independent of the rapes. H.C. told Lovato that she would give him a ride home if it was
nearby. Lovato assured H.C. that he lived “right up the street.” In reality, Lovato’s home
was a significant distance away from the nightclub, and H.C. was unfamiliar with the area
where he lived. Upon arriving in the alley, Lovato made advances toward H.C., even
though H.C. had told Lovato at the nightclub that she had a boyfriend. When H.C. rejected
Lovato’s advances, he repeatedly raped her in the car.
{¶ 16} R.C. 2905.01(A)(4) prohibits any person, “by force, threat, or deception,”
from removing another person from the place where the other person is found or restraining
the liberty of the other person for the purpose of engaging in sexual activity with the other
person against his or her will. The evidence at trial reflects that Lovato deceived H.C. into
driving him to the alley behind his home, which was a significant distance from the
nightclub, and that this asportation constituted a distinct act of kidnapping that was separate
from the subsequent rapes. Further, the continued forcible restraint of H.C. in the car was
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not incidental to the sexual assault. H.C. testified to vaginal rape by Lovato and his attempt
to lick her anus and vagina. She stated, however, that her detention lasted for two and a half
to three hours, well beyond the time associated with committing the sexual assault. While
this detention was part of the same animus (sexual motivation), it was distinct conduct from
the single act of rape of which he was convicted regarding H.C.
{¶ 17} Lovato’s kidnapping and rape of T.M. presents a closer question. Lovato
argues that T.M. voluntarily followed him to the alley by the United Foods store. Lovato
pulled her into the garage so he could rape her, and when T.M. tried to get away, he dragged
her back into the garage so he could continue to sexually assault her. He asserts that T.M.
was not restrained for any period of time that was not related to the rapes and was not
transported a significant distance.
{¶ 18} Many aspects of T.M.’s kidnapping support Lovato’s argument. T.M.
arrived at the bus stop at approximately 8:00 p.m. and at least 15 minutes passed before her
boyfriend arrived on the bus. T.M. returned to the bus stop after the rapes at approximately
10:00 p.m. Based on the timeline provided by T.M. (which was substantially corroborated
by her boyfriend’s father, police officers, and the United Foods’s security officer), the
multiple rapes occurred over a period of less than two hours. The trial testimony further
reflects that Lovato assaulted T.M. by the United Foods store, which was close to both the
bus stop where T.M. was heading and the location of the rape, and dragged her into a nearby
garage. Throughout the time that T.M.’s liberty was restrained, Lovato repeatedly raped
her. Once the rapes were completed, Lovato allowed T.M. to put on her underpants and
pants. T.M. was permitted to use her cell phone, and after walking to the bus stop, she
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called her boyfriend’s father to pick her up. Although T.M. was held for more than an hour,
the record does not demonstrate that T.M. was moved a significant distance or that she was
held for a significant period of time other than for the purpose of raping her. Although
Lovato walked her to the bus stop and waited there with her, T.M. was permitted to arrange
for transportation, which she took.
{¶ 19} We nevertheless conclude that T.M.’s kidnapping was not merely incidental
to the rape. Lovato dragged T.M. through the alley to the nearby garage while she was
unconscious. According to T.M.’s testimony, before any rapes occurred, T.M. attempted to
escape, and she ran out of the garage and back toward United Foods. Lovato caught up with
her, choked her, and dragged her back to the garage by her coat. T.M. stated that the hood
of her coat cut off her circulation and made her pass out again. At some point while T.M.
was unconscious, Lovato pulled down T.M.’s pants and underwear to her ankles, and he
dragged her “bare skin on the gravel back to the garage.” With T.M.’s escape and
recapture, Lovato engaged in a significant course of conduct to subdue T.M. prior to
sexually assaulting her. This conduct greatly increased the risk of harm to T.M., and it took
on a significance distinct from the rapes themselves, which occurred after T.M. was
recaptured. The trial court did not err in failing to merge the kidnapping with the rape.
{¶ 20} Lovato further argues that the felonious assaults of H.C. and T.M. should
have been merged with the kidnapping offenses. He argues that the felonious assaults and
kidnappings were committed with a single animus and the physical assaults were incidental
to the kidnappings and rapes. As with the kidnapping charges, the jury found that the
felonious assaults were committed with a sexual motivation, and we agree that the felonious
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assaults were committed for the purpose of facilitating the rapes. Nevertheless, we
conclude that the felonious assaults were separate acts, and the trial court did not err in
failing to merge the offenses.
{¶ 21} As discussed above, the kidnapping of H.C. began when Lovato deceived
H.C. into giving him a ride to his home. H.C. was not assaulted while she was driving
Lovato to his residence. When H.C. refused Lovato’s advances in the alley, Lovato
punched H.C. in the face several times and told her that she had three seconds to get in the
back seat of the car. H.C. complied, but Lovato punched her three or four more times.
After this assault, Lovato raped H.C. and restrained her for several hours. Although the
felonious assault occurred while H.C. was restrained by Lovato, it was a separate act from
the kidnapping by deception and it did not involve conduct that was necessary to restrain her
in the car for the purpose of raping her.
{¶ 22} The felonious assault of T.M. was similar to that of H.C. As H.C. and
Lovato were walking past the United Foods store, Lovato punched T.M. in the face and the
side of the head. T.M. “saw spots,” lost consciousness, and “came to” while Lovato was
dragging her by the hood of her coat into the garage. Lovato’s actions of punching T.M. at
the United Foods store were separate conduct from the kidnapping and the rapes.
{¶ 23} Lovato’s first assignment of error is overruled.
II. Ineffective Assistance of Counsel
{¶ 24} Lovato’s second assignment of error claims that his trial counsel “was
ineffective because he did not ask the trial court to merge allied offenses of similar import.”
{¶ 25} To reverse a conviction based on ineffective assistance of counsel, an
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appellant must demonstrate both that trial counsel’s conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption
that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466
U.S. at 688.
{¶ 26} In light of our disposition of Lovato’s first assignment of error, we cannot
conclude that he was prejudiced by counsel’s failure to argue that his offenses were allied
offenses of similar import. Lovato’s second assignment of error is overruled.
III. Voluntariness of Lovato’s Confession
{¶ 27} Lovato’s third assignment of error states:
The police coerced Mr. Lovato’s confession by depriving him of sleep and
exposing him to repeated and prolonged questioning. Thus, his confession
should have been excluded. Consequently, Mr. Lovato’s convictions should
be vacated and this case remanded for a new trial.
{¶ 28} In this assignment of error, Lovato claims that his confession was not
voluntary because he was sleep-deprived and subjected to repeated and prolonged
questioning. Lovato does not claim that his statements were given in violation of his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
{¶ 29} “In addressing a motion to suppress, the trial court assumes the role of the
trier of fact. The court must determine the credibility of the witnesses and weigh the
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evidence presented at the hearing. In reviewing the trial court’s ruling, an appellate court
must accept the findings of fact made by the trial court if they are supported by competent,
credible evidence. However, ‘the reviewing court must independently determine, as a
matter of law, whether the facts meet the appropriate legal standard.’” (Citations omitted.)
State v. Griffin, 2d Dist. Montgomery No. 25431, 2013-Ohio-3036, ¶ 15.
{¶ 30} Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct issues.
State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996); State v. Kelly, 2d Dist.
Greene No. 2004-CA-20, 2005-Ohio-305. Regardless of whether Miranda warnings were
required and given, a defendant’s statement may have been given involuntarily and thus be
subject to exclusion. Kelly at ¶ 11.
{¶ 31} A defendant’s statements to police after a knowing, intelligent, and
voluntarily waiver of the individual’s Miranda rights are presumed to be voluntary.
Miranda, supra. “The Miranda presumption applies to the conditions inherent in custodial
interrogation that compel the suspect to confess. It does not extend to any actual coercion
police might engage in, and the Due Process Clause continues to require an inquiry separate
from custody considerations and compliance with Miranda regarding whether a suspect’s
will was overborne by the circumstances surrounding his confession.” State v. Porter, 178
Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing Dickerson v.
United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
{¶ 32} “In deciding whether a defendant’s confession is involuntarily induced, the
court should consider the totality of the circumstances, including the age, mentality, and
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prior criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the existence of
threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), at
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57
L.Ed.2d 1155 (1978). See also State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d 491(1990); State v. Beaty, 2d Dist. Montgomery No. 24048, 2011-Ohio-5014, ¶ 16.
{¶ 33} The State has the burden to show by a preponderance of the evidence that a
defendant’s confession was voluntarily given. State v. Melchior, 56 Ohio St.2d 15, 381
N.E.2d 195 (1978).
{¶ 34} The evidence at the suppression hearing consisted of the testimony of
Dayton Police Officer Michael Saylors and Detective Theresa Lawson. Officer Saylors
testified that he (along with three other officers) went to the home of Lovato’s sister in the
late evening hours of January 16, 2006, to arrest Lovato on a rape complaint by T.M.
Lovato was asleep in his bedroom. The officers handcuffed him without waking him, and
then woke him to place him under arrest.
{¶ 35} When Lovato was being taken from his room, Lovato stated, “Is this about
crackhead [T.]?” Saylors responded that it was. Lovato told the officer, “I paid [T.] $20
and we had consensual sex.” The officer did not ask Lovato any questions and continued to
walk Lovato to his cruiser. Once Lovato was in Officer Saylors’s cruiser, the officer
informed Lovato of his Miranda rights. Lovato stated that he understood them. Saylors
then asked Lovato what had happened with T.M., and Lovato made statements. The
conversation lasted approximately five minutes. After Lovato’s statements, officers found
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the general location of the crime, and Lovato was taken to the police department to be
interviewed by a detective.
{¶ 36} Officer Saylors testified that Lovato did not ask for an attorney and did not
say that he wanted to stop answering questions. Saylors stated that Lovato appeared sober,
coherent, and alert, and he understood the English language. Neither Saylors nor any other
officer promised Lovato anything to get him (Lovato) to make statements. Lovato remained
awake during the ride to the police station.
{¶ 37} At the police station, Lovato was placed in a small interview room and his
handcuffs were removed. Detective Lawson provided him with a glass of water and a
cigarette, which he smoked. Lovato was left alone in the interview room for more than an
hour while Lawson went to the scene of the rape and then returned.
{¶ 38} At 2:30 a.m. on January 17, Lawson read Lovato a preinterview form with
his Miranda rights; Lovato followed along, indicated that he understood and wished to
waive his rights, and signed the form. After waiving his rights, Lovato made statements to
Detective Lawson regarding T.M., he wrote out a written statement, and he provided written
answers to written questions. The question and answer page was completed at 3:40 a.m.
Detective Lawson testified that Lovato was left alone to write his written statement. During
the one hour and ten minutes, Lovato did not ask for an attorney or to stop the questioning.
Detective Lawson stated that Lovato appeared sober and coherent and did not appear to be
sleepy.
{¶ 39} After Detective Lawson finished this first interview, she spoke with
Detective Olinger, who had been at the hospital interviewing T.M. Detective Lawson also
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learned that there was another complainant, H.C. Detectives Lawson and Olinger went
back into the interview room to question Lovato, with Detective Olinger leading the
interview. Lovato was reminded that he had been provided his Miranda rights and that
those rights still applied. Lovato admitted to being with H.C., but denied raping her. The
detectives repeatedly told Lovato to tell the truth, and they confronted him with physical
evidence that the women had been hurt. Eventually, Lovato answered a second set of
written questions and provided a second statement. Lovato was left alone when he wrote the
statement, and he was provided a break before then. The second interview was completed
at approximately 5:20 a.m.
{¶ 40} Detective Lawson testified that Lovato was permitted to use the restroom,
that he was provided water and cigarettes on several occasions, and that there were several
breaks during the questioning. The detective told Lovato that, if he was tired, they could
resume the interview in the morning. Lovato responded that he was “okay” and “somewhat
of a night owl.” Detective Lawson denied that she or Detective Olinger promised Lovato
anything in exchange for Lovato’s statements.
{¶ 41} We find no support for Lovato’s assertion that his confession was
involuntary. Lovato was advised of his Miranda rights by Officer Saylors and Detective
Lawson, and he was again reminded of those rights before he was interviewed by Detective
Olinger. Lovato waived his Miranda rights. The detectives questioned Lovato for several
hours during the early morning hours of January 17, 2006. However, he was provided
water and cigarettes on several occasions, and there were several breaks during the
interview. Lovato was taken to use the restroom, and he was asked if he wanted to stop the
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questioning due to fatigue; Lovato declined. Lovato was not handcuffed, and he was not
promised anything to induce his statements. Detectives Olinger and Lawson repeatedly told
Lovato that he needed to tell the truth, but there was no evidence that the detectives did
anything that overbore Lovato’s will. Lovato’s claim that the trial court should have
suppressed his confession as involuntary is without merit.
{¶ 42} Lovato’s third assignment of error is overruled.
IV. Intimidation of a Witness
{¶ 43} Lovato’s fourth assignment of error states:
There was insufficient evidence to convict Mr. Lovato of intimidating a
witness. Therefore, his conviction under R.C. 2921.04 should be vacated.
{¶ 44} Lovato was convicted of intimidating a witness, a first-degree misdemeanor,
and the trial court sentenced him to six months in jail for that offense, to be served
concurrently with his felony sentences. Lovato’s conviction was based on evidence that he
asked a cellmate, Kiesan Green, to contact H.C. and to tell her that she would be killed if she
came to court. However, Green did not contact the witness or try to intimidate her. Lovato
thus claims that there was insufficient evidence to support his conviction.
{¶ 45} We need not reach whether the evidence was sufficient to support Lovato’s
conviction, because we find the issue to be moot. “When a defendant convicted of a
misdemeanor has not moved for a stay of his sentence, and has completed the sentence and
paid any fine or costs, an appeal from the conviction is moot unless the defendant is subject
to a collateral legal disability stemming from the conviction.” State v. Parrish, 2d Dist.
Montgomery Nos. 25050 & 25032, 2013-Ohio-305, ¶ 5. Lovato did not seek to stay the
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execution of his misdemeanor sentence, and he has been imprisoned since 2007. Lovato
has served the entirety of his six-month sentence.
{¶ 46} Lovato’s assignment of error concerning his intimidation of a witness
conviction is overruled as moot.
V. Conclusion
{¶ 47} The trial court’s judgment will be affirmed.
..........
FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Carrie Wood
Hon. Dennis J. Langer