State v. Suggs ( 2016 )

[Cite as State v. Suggs, 2016-Ohio-5692.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 27812
27865
Appellee 27866
v.
ANTHONY SUGGS APPEAL FROM JUDGMENT
ENTERED IN THE
Appellant COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. CR 2012 03 0638
CR 2014 03 0883
CR 2014 07 2219
DECISION AND JOURNAL ENTRY
Dated: September 7, 2016
HENSAL, Judge.
{¶1} Anthony Suggs appeals three judgments of the Summit County Court of Common
Pleas that sentenced him to a total of 17 years imprisonment. For the following reasons, this
Court affirms.
I.
{¶2} According to Betty B., on July 24, 2015, Mr. Suggs, her ex-boyfriend, came to
her house looking for her. When she went outside to talk to him, he immediately struck her,
causing her to temporarily lose consciousness. When she came to, she was back inside her
house, and Mr. Suggs was still attacking her. At some point, Mr. Suggs got a knife from the
kitchen and held it to her throat. He then forced her upstairs and into the bathroom. He also
allegedly reached into her bra and took money that she was keeping there. By this time,
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however, police had responded to emergency calls placed by the others in the house. After
kicking through the front door of the house, the responding officers came upstairs with their
firearms drawn. Upon seeing the officers, Mr. Suggs attempted to crawl out the bathroom
window, but they dragged him back inside. After handcuffing Mr. Suggs, they searched him and
found cocaine.
{¶3} The Grand Jury indicted Mr. Suggs for aggravated robbery, aggravated burglary,
kidnapping, felonious assault, possession of cocaine, obstructing official business, and resisting
arrest. At trial, the jury found him guilty of kidnapping, the lesser-included offense of assault,
possession of cocaine, obstructing official business, and resisting arrest. The trial court
sentenced him to a total of 12 years for those offenses. That same day, it also sentenced him in
two other cases. Finding that he had violated the community control he was under for a previous
offense, the court sentenced him to two years imprisonment. It also sentenced him to three years
imprisonment for trafficking in cocaine and heroin offenses that arose out of a separate incident.
The court ordered Mr. Suggs to serve his prison terms in each of the three cases consecutively
for a total of 17 years. Mr. Suggs has appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ENTERING A JUDGMENT OF
CONVICTION AS TO COUNT FIVE, KIDNAPPING AS A FELONY OF THE
1ST DEGREE, AND SENTENCING ACCORDINGLY, AS THE VERDICT
FORM WAS SUFFICIENT ONLY FOR A FELONY OF THE 2ND DEGREE.
{¶4} Mr. Suggs argues that the trial court incorrectly concluded that his kidnapping
offense was a felony of the first degree. He argues that, because the jury’s verdict did not
include the degree of the offense or any aggravating elements, it was a finding of guilt of the
least severity, a felony of the second degree.
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{¶5} Revised Code Section 2945.75(A)(2) provides that, “[if] the presence of one or
more additional elements makes an offense one of more serious degree[,] [a] guilty verdict shall
state either the degree of the offense of which the offender is found guilty, or that such additional
element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the
least degree of the offense charged.” In State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, the
Ohio Supreme Court held that, “[p]ursuant to the clear language of R.C. 2945.75, a verdict form
signed by a jury must include either the degree of the offense of which the defendant is convicted
or a statement that an aggravating element has been found to justify convicting a defendant of a
greater degree of a criminal offense.” Id. at syllabus.
{¶6} Section 2905.01(C)(1) classifies kidnapping as a felony of the first degree unless
the offender “releases the victim in a safe place unharmed[.]” Under those circumstances,
kidnapping is a felony of the second degree. Id. The Ohio Supreme Court has held that the
statutory provision reducing the offense level of kidnapping “is not an element of the offense;
rather, the accused must plead and prove it in the fashion of an affirmative defense.” State v.
Sanders, 92 Ohio St. 3d 245, 265 (2001). “Accordingly, no aggravating or additional element
must be proved by the State to elevate kidnapping to a felony of the first degree. Instead, the
defendant bears the burden of establishing the existence of a mitigating factor which might
reduce the offense level.” State v. Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶
30, reversed on other grounds by State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089.
{¶7} Mr. Suggs argues that there was evidence of the mitigating circumstances in the
record, noting that the incident occurred in Betty B.’s home and that he left her in the company
of her friends and family. Mr. Suggs, however, did not “release” Betty B. until he saw the
responding officers and attempted to flee through the bathroom window. See State v. Jackson,
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10th Dist. Franklin No. 89AP-1015, 1990 WL 122569, *7 (Aug. 23, 1990) (“[A] defendant fails
to establish the mitigating circumstance of having released the victim in a safe placed unharmed
when the evidence shows that the victim was released only because they were liberated by the
police.”). In addition, the jury did not find that he left her “unharmed,” finding him guilty of
assaulting her. R.C. 2905.01(C)(1). We, therefore, conclude that the trial court did not violate
Section 2945.75 or Pelfrey when it determined that Mr. Suggs’s kidnapping offense was a felony
of the first degree. Mr. Suggs’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY NOT GRANTING SUGGS[’S] MOTION
FOR MISTRIAL BASED ON THE PROSECUTOR’S STATEMENT DURING
CLOSING ARGUMENT.
{¶8} Mr. Suggs next argues that the trial court should have declared a mistrial because
the prosecutor told the jury during closing argument that Mr. Suggs “was enraged. He had a
knife. He was going to kill Betty [B.]” According to Mr. Suggs, because he was not accused of
attempted murder and there was no evidence that he tried to kill Ms. B., the prosecutor’s
statements were improper and denied him of the right to a fair trial.
{¶9} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial
misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the
defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St. 3d 13, 14
(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper
conduct deprives the defendant of a fair trial.” State v. Knight, 9th Dist. Lorain No.
03CA008239, 2004-Ohio-1227, ¶ 6. “The touchstone of the analysis ‘is the fairness of the trial,
not the culpability of the prosecutor.’” State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266, ¶
140, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
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{¶10} The Ohio Supreme Court has explained that “both the prosecution and the defense
have wide latitude in summation as to what the evidence has shown and what reasonable
inferences may be drawn therefrom.” State v. Lott, 51 Ohio St. 3d 160, 165 (1990), quoting State
v. Stephens, 24 Ohio St. 2d 76, 82 (1970). “A prosecutor may state his opinion if it is based on
the evidence presented at trial.” State v. Watson, 61 Ohio St. 3d 1, 10 (1991). Betty B. testified
that, when Mr. Suggs held the knife to her throat, he told her that, although he was going to jail,
he was going to “make it worth it.” Another resident of the house testified that, when Mr. Suggs
had Betty B. in the bathroom, Mr. Suggs told her that she was “going to die.” In light of their
testimony, we conclude that the prosecutor’s statement was supported by the evidence and did
not constitute misconduct. Mr. Suggs’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
A. MR. SUGGS WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN THE TRIAL
COUNSEL FAILED TO ASK FOR THE JURY INSTRUCTION FOR LESSER
INCLUDED OFFENSES OF KIDNAPPING.
B. MR. SUGGS WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
COUNSEL FAILED TO OBJECT TO THE INADEQUATE VERDICT FORM.
{¶11} Mr. Suggs argues that his trial counsel was ineffective because he should have
requested an instruction on abduction or unlawful restraint as lesser-included offenses of
kidnapping and requested that those options be included in the verdict forms. To prevail on a
claim of ineffective assistance of counsel, Mr. Suggs must establish (1) that his counsel’s
performance was deficient to the extent that “counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and (2) that but for his counsel’s deficient
performance the result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 687 (1984). A deficient performance is one that falls below an objective standard of
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reasonable representation. State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the
syllabus. A court, however, “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In
addition, to establish prejudice, Mr. Suggs must show that there exists a reasonable probability
that, were it not for counsel’s errors, the result of the trial would have been different. Id. at 694.
{¶12} “In Ohio, there is a presumption that the failure to request an instruction on a
lesser-included offense constitutes a matter of trial strategy * * *.” State v. Hernon, 9th Dist.
Medina No. 3081-M, 2001 WL 276348, *4 (Mar. 21, 2002). Mr. Suggs has not identified
anything in the record that demonstrates that his counsel’s failure to request lesser included
offense instructions “was anything other than a tactical election to seek an acquittal rather than a
conviction on the lesser-included offense[s].” State v. DuBois, 9th Dist. Summit No. 21284,
2003-Ohio-2633, ¶ 6. We, therefore, conclude that Mr. Suggs has not established ineffective
assistance of counsel. Id. His third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
CONVICTION OF SUGGS FOR KIDNAPPING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, AS THE JURY CLEARLY LOST
ITS WAY IN DETERMINING THAT SUGGS COMMITTED KIDNAPPING
OFFENSE.
{¶13} Mr. Suggs also argues that his kidnapping conviction is against the manifest
weight of the evidence. If a defendant asserts that his convictions are against the manifest
weight of the evidence:
[A]n appellate court 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 trier of fact clearly lost its way
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and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997). An appellate court should only exercise its
power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.
State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32, citing Otten at 340.
{¶14} The indictment alleged that Mr. Suggs committed kidnapping under either Section
2905.01(A)(2) or (3). Those sections provide that “[n]o person, by force, threat, or deception * *
* by any means, shall remove another from the place where the other is found or restrain the
liberty of the other person * * * (2) [t]o facilitate the commission of any felony * * * [or] (3) [t]o
terrorize, or to inflict serious physical harm on the victim * * *.” R.C. 2905.01(A)(2-3). On its
verdict form, the jury wrote that it found Mr. Suggs guilty of the offense of kidnapping, “in
violation of §2905.01(A)(2)/(A)(3).”
{¶15} Mr. Suggs argues that, to find him guilty of kidnapping, the jury would have had
to believe that he committed a felonious assault or caused serious physical harm to Ms. B. He
notes, however, that the jury acquitted him of felonious assault, thereby finding that he did not
cause serious physical harm to Ms. B. or cause or attempt to cause physical harm to her by
means of a deadly weapon. See R.C. 2903.11(A) (specifying the elements of felonious assault).
He, therefore, argues that the jury’s findings are inconsistent, indicating that it clearly lost its
way when it found him guilty of kidnapping.
{¶16} Mr. Suggs’s argument overlooks the fact that one can commit kidnapping under
Section 2905.01(A)(3) by terrorizing an individual while removing or restraining the individual.
Because “terrorize” is not defined by the Revised Code, Ohio courts have defined it according to
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its common usage, which is “to fill with terror or anxiety.” State v. Chasteen, 12th Dist. Butler
No. CA2007-12-308, 2009-Ohio-1163, ¶ 21, quoting State v. Eggleston, 11th Dist. Lake No.
2008-L-047, 2008-Ohio-6880, fn.1; see also State v. McDougler, 8th Dist. Cuyahoga No. 86152,
2006-Ohio-100, ¶ 16; State v. Leasure, 6th Dist. Lucas No. L-02-1207, 2003-Ohio-3987, ¶ 47.
{¶17} Ms. B. testified that, after they were back inside her home, Mr. Suggs grabbed her
hair and tried to make her go upstairs. When she resisted, he took her over to the kitchen instead
and, grabbing a knife, told her that he was “going to make it worth it.” He placed the knife
against her throat and again told Ms. B. that, although he was going to prison, it was going to be
worth it. Mr. Suggs then took her back over to the staircase. Ms. B. testified that, around that
time, she fell over, so Mr. Suggs began kicking her, directing her toward the stairs and she
eventually made it up the stairs and into the bathroom.
{¶18} Upon review of the record, we conclude that Mr. Suggs’s statements to Ms. B.
and his actions with the knife support a finding that he terrorized her while restraining her.
Accordingly, we cannot say that the jury lost its way when it found him guilty of kidnapping.
Mr. Suggs’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT IMPROPERLY IMPOSE[D]
MAXIMUM AND CONSECUTIVE SENTENCE[S].
{¶19} Mr. Suggs’s final argument is that the trial court’s improperly ordered him to
serve some of his sentences consecutively. He argues that the court failed to make the findings
required under Revised Code Section 2929.14(C)(4).
{¶20} Section 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of multiple
offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
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the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also finds any of the
following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant
to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
If a court does not make the factual findings required by Section 2929.14(C)(4), prison terms are
served concurrent to any others. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 23.
The court, however, is not “required to give a talismanic incantation of the words of the statute,
provided that the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Id. at ¶ 37.
{¶21} At sentencing, the trial court noted that Mr. Suggs had committed his offenses
while on probation. Reviewing his criminal history, it explained to Mr. Suggs that “time and
time and time again you’ve committed violent felonies and you never really seem to be paying
the punishment for it. So guess what? Your day has come.” It told Mr. Suggs that it had
considered “the seriousness of this offense, the dangerousness of this offense, [and] the facts and
circumstances of this offense.” The court also explained to Mr. Suggs that, “to give you
anything less than consecutive sentences would demean the seriousness of the offenses, would
not properly protect the public and would not adequately punish you.” The court wrote in its
sentencing entries that “consecutive sentences are necessary to protect the public from future
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crime or to punish the offender and is not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Further, the offender’s criminal
history demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender.” Upon review of the record, we conclude that the trial court’s statements
at the sentencing hearing and in its sentencing entries were sufficient to satisfy the requirements
for consecutive sentences under Section 2929.14(C)(4). See State v. Giles, 9th Dist. Summit No.
27339, 2015-Ohio-2132, ¶ 19. Mr. Suggs’s fifth assignment of error is overruled.
III.
{¶22} Mr. Suggs’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.