State v. Hale , 2017 Ohio 2844 ( 2017 )

[Cite as State v. Hale, 2017-Ohio-2844.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2016-0048
NICHOLAS A. HALE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2015-0325
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 16, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
D. MICHAEL HADDOX DAVID A. SAMS
PROSECUTING ATTORNEY Box 40
GERALD V. ANDERSON II West Jefferson, Ohio 43162
ASSISTANT PROSECUTOR
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0048 2
Wise, John, J.
{¶1} Appellant Nicholas Hale, Jr. appeals his sentence entered in the
Muskingum County Court of Common Pleas following a jury trial and a finding of guilty on
15 felonies and 13 gun specifications.
{¶2} Appellee is the State of Ohio.
STATEMENTS OF THE FACTS AND CASE
{¶3} On October 7, 2015, Appellant, Nicholas Hale, was indicted on the following
charges:
Count 1- Aggravated Burglary (F1) w/ gun specification
Count 2 - Felonious Assault (F2) w/gun specification
Count 3 - Felonious Assault (F2) w/gun specification
Count 4 - Discharging Firearm into Habitation (F2)
Count 5 - Kidnapping w/firearm specification (F1)
Count 6 - Kidnapping w/firearm specification (F1)
Count 7 - Kidnapping w/firearm specification (F1)
Count 8 - Kidnapping w/firearm specification (F1)
Count 9 - Kidnapping w/firearm specification (F1)
Count 10 - Kidnapping w/firearm specification (F1)
Count 11- Felonious Assault w/firearm specification (F2)
Count 12- Felonious Assault w/firearm specification (F2)
Count 13 - Aggravated Burglary w/firearm specification (F1)
Count 14 - Aggravated Robbery w/firearm specification (F1)
Count 15 - Having Weapons Under Disability (F3)
Muskingum County, Case No. CT2016-0048 3
{¶4} These charges stem from events which took place on October 27, 2015,
October 28th and October 29th, 2015: The relevant facts are as follows:
{¶5} Counts 1, 2, and 3 involved the burglary of the home of Cody Cain on
October 27, 2015. During the burglary, Appellant assaulted Cain, striking him about
the head and face with the butt of Appellant's gun.
{¶6} On October 28, 2015, Appellant and Cody Cain's argument over drug
money continued, and Appellant shot at Cain while he was in the street. Appellant's shot
missed Cain, and instead hit the residence of Crystal Krause. (Count 4)
{¶7} The remaining counts arose from events which occurred on the following
day, October 29, 2015, when Appellant invaded the home of Tammy Zumbro and
demanded money allegedly owed to him for drugs. James Kirby was also in the home
and Appellant assaulted Ms. Zumbro with his gun, knocking out 4 of her teeth, and struck
both she and Mr. Kirby with a 2x4 piece of wood while holding them both hostage.
{¶8} Hours later, Susan Dupler, another resident, returned home and found the
house locked. After being let in, Appellant grabbed Ms. Dupler, put a gun to her head and
threatened to kill her. All three victims were held hostage for hours.
{¶9} Appellant locked Ms. Zumbro and Mr. Kirby in a laundry room and took a
nap. While Appellant was asleep, Ms. Dupler retreated to a back bedroom and snuck out
a window, ran to a neighboring house and called the police. Appellant continued this
hostage situation for a few more hours while in a standoff with the police. Eventually,
Appellant allowed Ms. Zumbro and Mr. Kirby to exit the residence. Officers tear-gassed
the residence, and Appellant exited and surrendered to the police.
{¶10} On August 2, 2016, a jury trial commenced in this matter.
Muskingum County, Case No. CT2016-0048 4
{¶11} On August 4, 2016, Appellant was found guilty on all counts.
{¶12} On August 5, 2016, a sentencing hearing was held. At sentencing, the
prosecutor stated that Appellant invaded people's homes to collect $200, shot up a
woman's home, savagely beat, kidnapped, and robbed three people who did nothing
wrong to him. Once apprehended, Appellant continued his criminal behavior, assaulting
guards in the jail, vandalized the jail, planned escapes, worked with his brother to destroy
evidence, and had his brother go out and threaten witnesses and victims, who live in fear
based on what he's done. (Sentencing Hearing, p. 4).
{¶13} The trial court also heard from defense counsel and Appellant, who related
mitigating factors for the judge to consider. The trial court then read two victim impact
letters, one written by Ms. Krause, the other by Ms. Dupler. The trial court then reviewed
Appellant's criminal history, noting that Appellant was currently serving time for a
conviction for assaulting a corrections officer while in jail on this case, and that he also
had a pending vandalism charge. The trial court noted that Appellant's criminal
convictions began when he was ten years old and continued to the present day.
{¶14} On August 4, 2016, the trial court sentenced Appellant to an aggregate
prison sentence of 51 years:
Count 1- Aggravated Burglary w/ gun spec: 11 yrs + 3
Count 2 - Felonious Assault w/firearm spec: 8 yrs + 3
Count 3 - Felonious Assault w/firearm spec: 8 yrs + 3
Count 4 - Discharging Firearm into Habitation: 8 yrs
Count 5 - Kidnapping w/firearm spec: 11 yrs +3
Count 6 - Kidnapping w/firearm spec: 11 yrs + 3
Muskingum County, Case No. CT2016-0048 5
Count 7 - Kidnapping w/firearm spec: 11 yrs + 3
Count 8 - Kidnapping w/firearm spec: merged w/5, 6 &7
Count 9 - Kidnapping w/firearm spec: merged w/5, 6 & 7
Count 10 - Kidnapping w/firearm spec: merged w/5, 6 & 7
Count 11- Felonious Assault w/firearm spec: 8 yrs + 3
Count 12- Felonious Assault w/firearm spec: 8 yrs + 3
Count 13 - Aggravated Burglary w/firearm spec- 11 yrs + 3
Count 14 - Aggravated Robbery w/firearm spec: 11 yrs + 3
Count 15 - Having Weapon Under Disability: 3 yrs
{¶15} Counts 1, 2 and 3 were concurrent with each other, but consecutive to
everything else, and the specifications in 2 and 3 consecutive to each other and to
everything else. Counts 5, 6 and 7 were concurrent with each other, but consecutive to
everything else, and the specifications consecutive to each other and to everything else.
Count 8, 9 and 10 were merged with counts 5, 6 and 7, and the state elected on 5, 6 and
7. Counts 11 and 12 were concurrent with each other, but consecutive to everything else,
and the specifications consecutive to each other and to everything else. (Sentencing
Hearing, p. 11-18).
{¶16} Appellant now appeals, setting forth the following assignments of error:
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRED UNDER R.C. 2929.14(C)(4) WHEN
IMPOSING CONSECUTIVE TERMS TOTALING 51 YEARS.
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{¶18} II. THE TRIAL COURT ERRED UNDER R.C. 2941.25 WHEN IMPOSING
CONSECUTIVE TERMS FOR THE FELONIOUS ASSAULT COUNTS OF 11 AND 12
AND THE KIDNAPPING COUNTS OF 5, 6 AND 7.
{¶19} “III. THE TRIAL COURT ERRED UNDER R.C. 2941.25 WHEN IMPOSING
CONSECUTIVE TERMS FOR MULTIPLE GUN SPECIFICATIONS ATTENDANT TO
CONCURRENT UNDERLYING TERMS.”
I.
{¶20} In his First Assignment of Error, Appellant argues that the trial court erred
in imposing consecutive sentences pursuant to R.C. §2929.14(C)(4). We disagree.
{¶21} R.C. §2929.14(C)(4) reads:
(4) 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 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
Muskingum County, Case No. CT2016-0048 7
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.
{¶22} Appellant does not argue that the trial court failed to make the requisite
findings pursuant to R.C. §2929.14(C)(4), rather Appellant argues that the length of his
sentence is disproportionate to the actual physical harm to the victims and that the length
of his sentence is tantamount to a life sentence.
{¶23} Upon review, we find that the physical harm is only one of the factors for the
trial court to consider in imposing sentence. R.C. §2929.12(B)(2). The trial court also
considered the number of victims, Appellant's conduct and the violent nature of the
crimes, the physical and psychological harm caused to the victims and Appellant's lengthy
criminal history. The trial court specifically found that the harm caused to multiple victims
was so great or unusual that no single sentence would adequately reflect the seriousness
of the conduct.
{¶24} Based on the record in this case, we do not find that the trial court abused
its discretion in imposing consecutive sentences herein.
{¶25} Appellant’s First Assignment of Error is overruled.
Muskingum County, Case No. CT2016-0048 8
II.
{¶26} In Appellant's Second Assignment of Error he argues that the trial court
erred in failing to merge Counts 11 and 12 (Felonious Assault) with Counts 5, 6 and 7
(Kidnapping). We disagree.
{¶27} Appellant maintains the trial court failed to find these charges were allied
offenses of similar import, arguing that they were part of the same break-in and had the
same financial motive.
{¶28} R.C. §2941.25, Multiple counts, states:
(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.
{¶29} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence,
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors-the conduct, the animus, and the import.
Muskingum County, Case No. CT2016-0048 9
2. Two or more offenses of dissimilar import exist 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.
{¶30} The Court further explained,
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following
is true, the offenses cannot merge and the defendant may be convicted
and sentenced for multiple offenses:
(1) the offenses are dissimilar in import or significance—in other
words, each offense caused separate, identifiable harm,
(2) the offenses were committed separately, and
(3) the offenses were committed with separate animus or motivation.
***
An affirmative answer to any of the above will permit separate
convictions. The conduct, the animus, and the import must all be
considered.
{¶31} Upon review of the record, we find Appellant failed to object at sentencing
as to Counts 11 and 12 and Counts 5, 6, and 7 being allied offenses.
{¶32} When an accused fails to seek the merger of his or her convictions as allied
offenses of similar import in the trial court, the accused forfeits his or her allied offenses
Muskingum County, Case No. CT2016-0048 10
claim for appellate review. State v. Rogers, 143 Ohio St.3d 385. “[F]orfeiture is the failure
to timely assert a right or object to an error, and * * * ‘it is a well-established rule that “an
appellate court will not consider any error which counsel for a party complaining of the
trial court's judgment could have called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by the trial court.” ’ ” Id. at ¶
21.
{¶33} Further, this Court finds that the offenses of kidnapping and felonious
assault in this case were not allied offenses requiring merger.
{¶34} The offense of kidnapping is defined in R.C. §2905.01(A)(1), in relevant
part, as follows:
(A) No 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, for any of the following purposes:
(1) To hold for ransom, or as a shield or hostage;
{¶35} The offense of felonious assault is defined in R.C. §2903.11(A)(1), which
provides,
(A) No person shall knowingly …
(1) Cause serious physical harm to another or to another's unborn;
{¶36} We find that the acts of holding the victims hostage for hours is separate
and distinct from the acts of hitting one of the victims with the butt of the gun and two of
the victims in the head with a 2x4 board.
{¶37} We find no error in the trial court not merging the counts for purposes of
sentencing.
Muskingum County, Case No. CT2016-0048 11
{¶38} Appellant’s Second Assignment of Error is overruled.
III.
{¶39} In his Third and final Assignment of Error, Appellant argues that the trial
court erred in imposing consecutive sentences for the multiple firearm specifications. We
disagree.
{¶40} Here, the trial court ordered the firearm specifications on seven (7) of the
counts to run consecutively.
{¶41} R.C. §2929.14(B)(1)(g) provides:
If an offender is convicted of or pleads guilty to two or more felonies,
if one or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.” (emphasis
added).
{¶42} Appellant argues that the specifications should have followed how the
attendant charges were sentences.
Muskingum County, Case No. CT2016-0048 12
{¶43} Upon review of the cases cited by Appellant, we find that those cases
involved the merger of allied offenses, not how specifications to counts running
concurrent or consecutive should run.
{¶44} Based on the number of victims, the number of serious crimes committed
by Appellant, and the violent nature of those crimes, we find no abuse of discretion in the
trial court's imposition of consecutive sentences on seven firearm specifications in this
matter.
{¶45} Appellant’s Third Assignment of Error is overruled.
{¶46} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is affirmed.
By: Wise, John, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0425