State v. Smith ( 2019 )

[Cite as State v. Smith, 2019-Ohio-1952.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-T-0061
- vs - :
JONATHON KIRKLAND SMITH, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2018 CR 0054.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor; Diane Barber and Ashleigh Musick,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Jonathon Kirkland Smith, appeals from the judgment of
conviction entered by the Trumbull County Court of Common Pleas on June 12, 2018,
following a plea of guilty to six felony offenses. The issues on appeal relate to merger of
offenses and imposition of sentence. The judgment is affirmed.
{¶2} On February 13, 2018, appellant was indicted by the Trumbull County
Grand Jury in a six-count indictment: Aggravated Robbery, first-degree felonies in
violation of R.C. 2911.01(A)(1)&(C) with firearm specifications (Counts 1 & 2);
Kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(2)&(C)(1) with a firearm
specification (Count 3); Having Weapons While Under Disability, a third-degree felony in
violation of R.C. 2923.13(A)(3)&(B) (Count 4); Carrying Concealed Weapon, a fourth-
degree felony in violation of R.C. 2923.12(A)(2)&(F)(1) (Count 5); and Improperly
Handling Firearms in a Motor Vehicle, a fourth-degree felony in violation of R.C.
2923.16(B)&(I) (Count 6).
{¶3} Appellant entered a plea of guilty to all counts of the indictment on March
28, 2018. The prosecuting attorney provided the following factual basis for the charges
and presented appellant’s prior convictions, in both state and federal court, for possession
of cocaine and possession with intent to distribute cocaine.
{¶4} On December 23, 2017, appellant entered a Boost Mobile store in Niles,
Ohio, brandishing a .40 caliber Taurus pistol, and demanded the store clerk empty the
cash register. He ordered the clerk to various locations in the store at gunpoint,
threatening to shoot her, before leaving her in a back room; he told her not to move or he
would shoot her. Appellant stole money from the cash register and six brand new cell
phones from the store. He also stole the store clerk’s wallet and cell phone. Appellant
was apprehended a short time later in a vehicle at a parking lot in Howland Township,
Ohio. The vehicle was searched pursuant to a search warrant. The brand-new cell
phones and the clerk’s wallet and cell phone were found. The loaded pistol was also
located in a pocket on the rear of the passenger’s seat, which would have been within
reach of appellant.
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{¶5} The trial court accepted appellant’s guilty plea and ordered a pre-sentence
investigation. The state filed a sentencing memorandum, requesting maximum
consecutive sentences. It argued the only counts that should merge were Counts 5 and
6. Appellant filed a sentencing memorandum, arguing the kidnapping and aggravated
robbery counts should also merge as allied offenses of similar import. Alternatively,
appellant requested concurrent sentences on the two aggravated robbery counts.
{¶6} A sentencing hearing was held June 6, 2018. The trial court found the two
counts of aggravated robbery do not merge, as there were separate victims with separate
harm, to wit: Boost Mobile and the store clerk. The court also found the kidnapping count
does not merge with either aggravated robbery count, as it was committed with a separate
animus with a different likelihood of harm. Therefore, the firearm specifications for all
three of those offenses did not merge. The trial court did merge Count 5, carrying a
concealed weapon, with Count 6, improperly handling firearms in a motor vehicle, and
the state elected to proceed to sentencing on Count 5.
{¶7} The trial court found appellant has been in prison on several occasions, has
a lengthy history of federal and state felony convictions, was on parole for federal crimes
at the time of the instant offenses, and has a high risk of recidivism.
{¶8} The trial court sentenced appellant to an aggregate prison term of 20 years:
concurrent sentences of eleven years on Counts 1, 2, and 3; thirty-six months on Count
4 and seventeen months on Count 5, each to run concurrent to each other and concurrent
to Counts 1, 2, and 3; and three years on each firearm specification, to run prior to and
consecutively to Counts 1, 2, and 3. The entry on sentence was issued July 12, 2018.
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{¶9} Appellant noticed this appeal and asserts two assignments of error for our
review. His first assignment of error states:
{¶10} “The trial court erred by sentencing the appellant to the maximum term of
incarceration available on Counts One, Two and Three.”
{¶11} Appellant initially maintains Ohio law is inconsistent with regard to the
appropriate standard of appellate review. Arguing the trial court “abused its discretion,”
appellant cites to a Ninth District opinion, State v. Colburn, 9th Dist. Medina No.
14CA0012-M, 2016-Ohio-165, which utilized the “two-step approach” outlined in State v.
Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912. Kalish is an outdated opinion from the
Supreme Court of Ohio, which was abrogated not long after Colburn was decided, as
stated in State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002. Since the 2016 Marcum
decision, it is well-accepted and well-settled throughout Ohio that the appropriate
standard of review for felony sentences is found in R.C. 2953.08(G)(2):
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. [Emphasis added.]
{¶12} Appellant has not provided this court with any argument as to why the trial
court’s imposition of sentence is either contrary to law or not supported by the record.
Appellant merely argues that imposition of the maximum terms of incarceration for Counts
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1, 2, and 3 must be reversed because he “entered guilty pleas to all of the charges in the
indictment and, unquestionably, accepted full responsibility for his actions.”
{¶13} There is absolutely no basis in the law to reverse a sentence solely because
the defendant chose to plead guilty to each count in an indictment and, by doing so,
accepted full responsibility for his or her actions.
{¶14} We further note that appellant faced a possible aggregate prison term of 33
years for Counts 1, 2, and 3. He, in fact, faced a possible total prison term of 46.5 years
for all six felonies, taking into account the merger of Counts 5 and 6. Instead, the trial
court ordered each sentence be served concurrent to each other, with the exception of
the firearm specifications, resulting in an aggregate prison term of 20 years.
{¶15} Appellant has not demonstrated that the trial court erred in sentencing him
to the maximum terms of incarceration for Counts 1, 2, and 3. The sentence is not
contrary to law, and the trial court’s findings are supported by the record.
{¶16} Appellant’s first assignment of error is without merit.
{¶17} Appellant’s second assignment of error states:
{¶18} “The trial court erred, as a matter of law, by failing to merge both of the
aggravated robbery counts with one another, as well as the count for kidnapping.”
{¶19} Appellant argues it was error to merge both aggravated robbery counts and
the kidnapping count because all of the allegedly stolen items were taken during one
continuous transaction, one victim was involved, and one location was breached.
{¶20} R.C. 2941.25 specifies when merger is appropriate and “incorporates the
constitutional protections against double jeopardy. These protections generally forbid
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successive prosecutions and multiple punishments for the same offense.” State v.
Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, ¶7. R.C. 2941.25 provides as follows:
(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.
{¶21} “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, syllabus. Two or
more offenses may result in multiple convictions if any of the following are true: “(1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, or (3) the
offenses were committed with separate animus or motivation.” State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, ¶25. “[T]wo 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.” Id. at ¶26.
{¶22} We review a trial court’s R.C. 2941.25 determination de novo. State v.
Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, ¶1. “As in cases involving review of
motions to suppress, ‘the appellate court must * * * independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
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standard.’” Id. at ¶26, quoting State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372,
¶8; see also State v. Peace, 11th Dist. Portage No. 2017-P-0037, 2018-Ohio-3742, ¶13;
but see Williams, supra, at ¶30 (O’Donnell, J., dissenting) (“because it is a mixed question
of law and fact, an appellate court reviews the legal conclusion of whether the offenses
are allied using a de novo standard, but because the trial judge is the fact-finder, * * * the
appellate court should defer to the factual findings of the trial court provided they are
supported by some competent, credible evidence”) and State v. Jack, 11th Dist. Geauga
No. 2016-G-0057, 2017-Ohio-9260, ¶18.
{¶23} Appellant was convicted of Aggravated Robbery and Kidnapping, in
violation of R.C. 2911.01(A)(1) and R.C. 2905.01(A)(2), respectfully. The relevant
portions of these statutes provide:
Aggravated Robbery: (A) No person, in attempting or committing a
theft offense, as defined in section 2913.01 of the Revised Code, or
in fleeing immediately after the attempt or offense, shall do any of the
following: (1) Have a deadly weapon on or about the offender’s
person or under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it[.]
Kidnapping: (A) No person, by force, threat, or deception * * * 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: * * * (2) To facilitate the commission of any felony or flight
thereafter[.]
{¶24} It is possible for these two offenses, under certain circumstances, to merge
as allied offenses of similar import. See, e.g., In re A.G., 8th Dist. Cuyahoga No. 101010,
2016-Ohio-5616 (where the victim opened his car door after obtaining cash from an ATM,
the defendant pulled a gun from his pocket and threatened to shoot the victim unless he
got into the car); State v. Phipps, 10th Dist. Franklin No. 15AP-524, 2016-Ohio-663
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(where the victims were held at gun point only for as long as necessary to commit the
aggravated robbery).
{¶25} In State v. Logan, 60 Ohio St. 2d 126 (1979), the Ohio Supreme Court
provided guidelines for determining whether kidnapping is an allied offense of another
crime:
(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 syllabus. “‘Although Logan predates Ruff, Ohio courts continue to apply the
guidelines set forth in Logan in determining whether kidnapping and another offense were
committed with a separate animus, in accordance with the third prong of the Ruff test.’”
State v. Cook, 11th Dist. Geauga No. 2016-G-0096, 2018-Ohio-788, ¶15, quoting State
v. Asadi-Ousley, 8th Dist. Cuyahoga No. 104267, 2017-Ohio-7252, ¶47, reopened on
other grounds, citing State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-
4452, ¶125, State v. Williams, 7th Dist. Mahoning No. 13 MA 125, 2015-Ohio-4100, ¶18,
and State v. Stinnett, 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, ¶53.
{¶26} We find the facts of this case similar to those in State v. Randle, 3d Dist.
Marion Nos. 9-17-08 & 9-17-09, 2018-Ohio-207. In Randle, the defendant led the victim
to the front of the store at knife point. Id. at ¶16. The Court held this was kidnapping for
the purpose of facilitating a robbery and was, therefore, committed with the same animus
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as the robbery. Id. After the victim emptied the cash register and lottery box into a bag,
however, the defendant ordered the victim to a back room and locked her in a closet. Id.
The Court held this was kidnapping for the purpose of facilitating the defendant’s escape:
it was not necessary to further the robbery nor was it incidental to committing the robbery.
Id. at ¶17. Thus, locking the victim in a closet was committed with a separate animus
than the robbery. Id.
{¶27} Here, the trial court found the kidnapping charge did not merge with either
aggravated robbery charge because “there was a separate animus with different
likelihood of harm.” Upon independent review of the facts, we agree. Leading the store
clerk through the store at gunpoint was for the purpose of facilitating the aggravated
robbery. However, appellant’s asportation of the clerk to the back room, where she was
told not to leave under threat of being shot, was for the purpose of facilitating his escape.
Similar to Randle, we conclude this act was committed with a separate animus than both
counts of aggravated robbery.
{¶28} The trial court did not err in failing to merge the kidnapping count with either
aggravated robbery count, as they are not allied offenses of similar import under the
circumstances of this case.
{¶29} The trial court also did not err in failing to merge the two aggravated robbery
counts. The trial court found “there was separate victims with separate harm.” Upon
independent review of the facts, we agree. Items belonging to Boost Mobile were stolen,
and personal items belonging to the store clerk were stolen. Therefore, we conclude
there was separate, identifiable harm.
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{¶30} Appellant argues a store employee is the “owner” of the store’s property for
purposes of the aggravated robbery statute. He relies on State v. Jones, 1st Dist.
Hamilton No. C-160826, 2018-Ohio-1130, where the defendant’s indictment listed a store
employee as the victim of an aggravated burglary of a gas station. The defendant argued
there was insufficient evidence to convict him, because he stole items from the store, not
from the employee. Id. at ¶28. The First District held the employee was the owner of the
items taken, i.e., with rights superior to that of the defendant, pursuant to the statutory
definition of “owner.” Id. at ¶29, citing R.C. 2913.01(D) (“‘owner’ means, unless the
context requires a different meaning, any person, other than the actor, who is the owner
of, who has possession or control of, or who has any license or interest in property or
services,” even if unlawful). Thus, the First District held there was sufficient evidence to
support the defendant’s conviction of aggravated burglary. Id. Jones did not involve
issues of merger or multiple victims, and the defendant did not take personal items from
the store employee in addition to store property. The case is therefore inapposite to the
legal matter at hand.
{¶31} Appellant’s second assignment of error is without merit.
{¶32} The judgment of the Trumbull County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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