State v. Kimbrough

[Cite as State v. Kimbrough, 2012-Ohio-2927.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97568
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL C. KIMBROUGH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-546878
BEFORE: Boyle, P.J., Cooney, J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 28, 2012
ATTORNEY FOR APPELLANT
David V. Patton
P.O. Box 39192
Solon, Ohio 44139-0192
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Michael Kimbrough, appeals his conviction and
sentence, raising two assignments of error:
“[I.] The trial court committed reversible error in accepting the defendant’s
guilty plea because the plea was not knowing, voluntary, and intelligent because the
defendant was mentally ill and did not understand the terms or consequences of his plea.
“[II.] The trial court prejudicially erred when it failed to merge the kidnapping,
rape, and felonious assault counts for sentencing purposes.”
{¶3} We find these arguments unpersuasive and affirm.
Procedural History and Facts
{¶4} In February 2011, Kimbrough was indicted on seven counts: kidnapping, in
violation of R.C. 2905.01(A)(4); three counts of rape, in violation of R.C. 2907.02(A)(2);
attempted rape, in violation of R.C. 2907.02(A)(2); gross sexual imposition, in violation
of R.C. 2907.05(A)(1); and felonious assault, in violation of R.C. 2903.11(A)(1). All of
the counts carried various specifications, including sexual motivation, repeat violent
offender, and sexual violent predator specifications.
{¶5} The facts giving rise to the indictment were as follows. On January 28,
2011, the victim, a 15-year-old girl, was walking down Turney Road in Garfield Heights
at approximately 9:00 p.m. when she spotted Kimbrough walking toward her. The
victim attempted to deflect Kimbrough’s advances, asking him to leave her alone. The
victim walked to the corner of Turney Road and Garfield Boulevard, where Kimbrough
eventually caught up to her and threw her into a glass-enclosed bus shelter. He then
forced the victim to perform oral sex on him. According to the state, this lasted for
approximately ten minutes at which point Kimbrough ordered the victim to stand up and
turn around. The victim attempted to flee but Kimbrough grabbed her and threw her
into the bus shelter, causing the victim to hit her head on the glass and her lower back on
the bench. Kimbrough forced the victim to perform oral sex again and then ultimately
pulled down the victim’s pants and digitally penetrated her.
{¶6} During the assault, the victim was able to dial 911 on her cell phone,
resulting in the police being notified and responding to the scene. Kimbrough was
immediately arrested, and the victim was taken to the hospital.
{¶7} In March 2011, Kimbrough was referred to the court’s psychiatric clinic for
a competency to stand trial and sanity evaluation. Kimbrough had been previously
diagnosed with schizophrenia and major depressive disorders. Following the referral, he
was also transferred to the mental health docket. Kimbrough further obtained a private
independent examination as to his competency to stand trial and sanity. Both the state
and Kimbrough ultimately stipulated to the reports of the examiners, including their
competency finding.
{¶8} Kimbrough later appeared before the court on a change of plea hearing.
Under a plea agreement reached with the state, Kimbrough pleaded guilty to single counts
of rape, felonious assault, and kidnapping. The kidnapping also carried a sexual
motivation specification. All other counts and specifications were nolled. After
conducting a lengthy colloquy advising Kimbrough of his constitutional and
nonconstitutional rights, including the maximum penalty that Kimbrough faced under
each count, the trial court accepted Kimbrough’s plea of guilty.
{¶9} Prior to sentencing, the trial court asked the parties to brief the issue of
allied offenses and whether any of these counts merged. While the state contended that
none of the offenses merged, Kimbrough argued that all three should merge because they
were all committed with the same animus as part of the same transaction.
{¶10} The trial court found that the felonious assault and kidnapping counts
merged. The state elected to move forward on the kidnapping count. The trial court
sentenced Kimbrough nine years on the rape count and nine years on the kidnapping
count, to run consecutive to one another for a total term of 18 years in prison.
{¶11} Kimbrough now appeals his conviction and sentence.
Guilty Plea
{¶12} In his first assignment of error, Kimbrough argues that the trial court erred
in accepting his guilty plea because the plea was not knowingly, voluntarily, and
intelligently made. He contends that his mental illnesses combined with the medication
that he was taking precluded him from understanding the consequences of his guilty plea.
We find his argument unpersuasive.
{¶13} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450(1996).
{¶14} Crim.R. 11(C)(2) requires a court, prior to accepting a guilty plea, to address
the defendant personally; the court must specify each of the constitutional rights the
defendant is waiving by entering his plea, and, further, must determine, in pertinent part,
that “he is making the plea voluntarily, with an understanding of the nature of the charge
and the maximum penalty involved,” that “he understands the effect of his plea of guilty”
and that he understands the court “may proceed to judgment and sentence.” See State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
{¶15} Kimbrough contends that he did not understand the consequences of his plea
as evidenced by his stated confusion regarding postrelease control and the reporting
requirements for a sexual offender. He further claims that he repeatedly misstated the
possible sentencing ranges for kidnapping and rape, further evidencing his lack of
understanding of the consequences of his plea. He alludes that he was incapable of
understanding based on his minimal education, mental illnesses, and the medication that
he was taking. But in reviewing the entire record, we find that these arguments have no
merit.
{¶16} To the extent that Kimbrough expressed confusion between post-release
control and the reporting requirements of a Tier III sexual offender, the record reveals
that the trial court answered Kimbrough’s questions, eliminating any confusion that he
may have had. Additionally, while Kimbrough expressed some confusion regarding the
concept of merger as it relates to allied offenses, the trial court again addressed
Kimbrough’s confusion and answered his questions until Kimbrough indicated that he
understood. In discussing merger, the trial court explained the maximum penalty for
each offense and the possibility that some of the counts may merge, resulting in a lower
possible sentence, but also emphasized that the counts may not merge, resulting in a
possible sentence of 28 years in prison. Notably, however, it was not necessary for
Kimbrough to understand the doctrine of merger in order to knowingly, voluntarily, and
intelligently understand the consequences of his plea.
{¶17} Contrary to Kimbrough’s assertion on appeal, we find his very questioning
of these aspects of his sentence during the plea colloquy demonstrates that he understood
what the trial court said. Indeed, in this case, the record reflects that the trial court
complied literally with every part of Crim.R. 11(C)(2). And Kimbrough appropriately
responded to the trial court’s questioning, including correctly answering the trial court’s
questions as to the range of sentence for each count. We find absolutely no evidence in
the record to corroborate Kimbrough’s claim on appeal that he did not understand the
maximum possible sentence that he could receive as a result of his guilty plea. Here, the
court’s literal compliance, along with Kimbrough’s assurances and completely
appropriate responses during the colloquy, “necessarily means that, under the totality of
the circumstances, he subjectively understood the implications of his plea.” State v.
Stokes, 8th Dist. No. 95488, 2011-Ohio-2531, ¶ 28.
{¶18} We further find no evidence that Kimbrough’s taking of psychotropic drugs
precluded him from understanding what the trial court was explaining. In fact, in
answering the trial court’s questions, Kimbrough expressly indicated that he was taking
psychotropic drugs that were helping him — he indicated that he felt well and was
thinking clearly. Under these circumstances, the trial court cannot be faulted for
accepting Kimbrough’s plea. State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805
N.E.2d 1064, ¶ 66-68.
{¶19} The first assignment of error is overruled.
Allied Offenses
{¶20} In his second assignment of error, Kimbrough argues that the trial court
erred in failing to merge all three counts as allied offenses. He contends that all three
crimes occurred as part of the same single transaction and with the same single animus.
We disagree.
{¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
the Ohio Supreme Court held that a trial court must consider the defendant’s conduct to
determine whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25.
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.
Id. at ¶ 49-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
149, ¶ 50.
{¶22} Here, the trial court found that kidnapping and felonious assault were allied
offenses. The only issue on appeal is whether the trial court should have also merged
the rape count as well. Kimbrough contends that it should have because the rape,
kidnapping, and felonious assault “correspond to such a degree”; he argues that all three
crimes were “part and parcel of the same occurrence.” According to Kimbrough, a
conviction for kidnapping under R.C. 2905.01(A)(4)1 must always merge with a rape
count under R.C. 2907.02(A)(2).2 We disagree.
{¶23} While there is no dispute that rape, in violation of R.C. 2907.02(A)(2), and
kidnapping, in violation of R.C. 2905.01(A)(4), may be allied offenses in some cases as
defined under the Johnson test, the critical issue is whether the crimes in this case were
committed with the same animus. See State v. Ortiz, 8th Dist. No. 95026,
2011-Ohio-1238. In deciding whether the kidnapping was committed with a separate
animus, a trial court should consider the circumstances surrounding the restraint and
1
This statute provides that “[n]o 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, * * *
[t]o engage in sexual activity as defined in section 2907.01 of the Revised Code, with the victim
against the victim’s will.”
2
This statute provides that “[n]o person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat of force.”
confinement as well as any additional risk of harm to the victim. Id. Relying on the
Ohio Supreme Court’s holding in State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345(1979), this court adopted the following guidelines to establish whether kidnapping and
an offense of the same or similar import are committed with separate animus:
(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.
Ortiz at ¶ 16, quoting Logan at syllabus.
{¶24} This is not a case where the kidnapping was incidental to the underlying rape. The
record reveals that the victim was held captive for nearly an hour, that she sustained a serious injury to
her head and back upon trying to escape, and that she was forced to perform oral sex on more than one
occasion. She was further digitally penetrated separate from having to perform oral sex during her
captivity. Under these circumstances, we cannot say that the single count of kidnapping was
incidental to a single count of rape.
{¶25} The second assignment of error is overruled.
{¶26} In sum, we find that Kimbrough’s guilty plea was knowingly, voluntarily, and
intelligently made and that the trial court properly determined that the rape and kidnapping counts were
not allied offenes.
{¶27} Judgment affirmed.
It is ordered that appellee recover of 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 appeal 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
COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR