State v. Love

[Cite as State v. Love, 2014-Ohio-1603.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA16
:
vs. :
: DECISION AND JUDGMENT
WARREN L. LOVE, : ENTRY
:
Defendant-Appellant. : Released: 04/10/14
_____________________________________________________________
APPEARANCES:
Andrew T. Sanderson, Burkett & Sanderson, Inc., Newark, Ohio, for
Appellant.
Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr.,
Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Hocking County Common Pleas Court
judgment convicting Appellant after a jury found him guilty of five felony
offenses, which included aggravated robbery and felonious assault, both
with firearm specifications, tampering with evidence, aggravated trafficking
in drugs, and having weapons while under a disability. Appellant was
sentenced to an aggregate sentence of twenty-three years as a result of his
convictions. On appeal, Appellants raises two assignments of error,
Hocking App. No. 13CA16 2
contending that 1) his conviction was based upon insufficient evidence; and
2) the trial court committed harmful error in imposing sentence.
{¶2} Because we conclude that a rational trier of fact could have
found all of the essential elements of aggravated robbery were proven
beyond a reasonable doubt and, as such, that Appellant’s conviction for
aggravated robbery was supported by sufficient evidence, Appellant’s first
assignment of error is overruled. Further, in light of our conclusion that
Appellant’s aggravated robbery and felonious assault convictions involved
two separate victims, we cannot conclude that the trial court erred in failing
to merge these convictions for purposes of sentencing. Finally, because the
trial court was required, under R.C. 2929.14(B)(1)(g) to impose consecutive
sentences for both firearm specifications, we find no “harmful error” in the
imposition of the sentences. As such, Appellant’s second assignment of
error is also overruled. Accordingly, the decision of the trial court is
affirmed.
FACTS
{¶3} A multi-count indictment was brought against Appellant on
February 22, 2013, charging Appellant with aggravated robbery with a
firearm specification, a first degree felony in violation of R.C.
2911.01(A)(1) and 2941.145, felonious assault with a firearm specification,
Hocking App. No. 13CA16 3
a second degree felony in violation of R.C. 2903.11(A)(2) and 2941.145,
tampering with evidence, a third degree felony in violation of R.C.
2921.12(A)(1), aggravated trafficking in drugs, a third degree felony in
violation of R.C. 2925.03(A)(1), having weapons while under a disability, a
third degree felony in violation of R.C. 2923.13(A)(2), and receiving stolen
property, a fifth degree felony in violation of R.C. 2913.51(A). Appellant
pled not guilty and the matter proceeded to a two-day trial, beginning on
June 11, 2013.
{¶4} The State’s theory at trial was that a drug transaction was
arranged as a “subterfuge” to commit robbery. The State presented three
witnesses that were present the night the incident occurred: Sarah
Williamson, Thomas Bailey, and Michael Herrold. Williamson testified that
she had been in contact with an old friend, Amanda Thompson, that had
asked her if she could “get rid of any Perc 30s[,] or 30 mg. Percocet pills.
She testified that her friend, Thomas Bailey, wanted some, so she essentially
set up the transaction, the plan being for Thompson to bring the drugs to a
local Speedway. Apparently, however, when it was all said and done,
Thompson arrived in town with two other adults and a baby in her vehicle,
and came to Williamson’s house instead of Speedway.
Hocking App. No. 13CA16 4
{¶5} Williamson testified that Thomas Bailey and Michael Herrold
were with her on the night of the incident. She testified that after she handed
the money for the drugs to an occupant named Sharvonne, who was seated
in the front seat of the vehicle, Appellant, who was seated in the back of the
vehicle, jumped out with a gun, told Bailey and Herrold to get on the
ground, and then went through Bailey’s pockets. Williamson then detailed
the events that led to a shooting, which formed the basis of the felonious
assault charge, which is not at issue on appeal.
{¶6} Bailey and Herrold also testified, however, both denied any
knowledge of a drug transaction. Their testimony will be detailed more fully
below, however, both testified in accordance with Williamson, with respect
to Appellant jumping out the vehicle with a gun, ordering them to the
ground, and robbing Bailey. The defense theory at trial seemed to be that
this was simply a drug deal that went wrong, and that no theft offense, and
thus, no aggravated robbery occurred. However, Appellant did not testify at
trial, nor present any witnesses in his defense. At the close of the State’s
evidence, Appellant moved for acquittal pursuant to Crim.R. 29(A), which
was denied by the trial court, and the matter was submitted to the jury for
determination.
Hocking App. No. 13CA16 5
{¶7} The jury convicted Appellant of aggravated robbery, felonious
assault, aggravated trafficking in drugs, tampering with evidence, having a
weapon while under a disability, and both firearm specifications. Appellant
was acquitted on the charge of receiving stolen property. The trial court
sentenced Appellant to a ten-year term of imprisonment on the aggravated
robbery conviction and a seven-year term of imprisonment on the felonious
assault conviction, to be served consecutively to one another. The trial court
also sentenced Appellant to three-year terms of imprisonment on each
firearm specification, to be served consecutively to one another and
consecutively to the underlying charges, for an aggregate prison term of
twenty-three years. The sentences for the remaining convictions were
ordered to be served concurrently to these sentences.
{¶8} It is from the trial court’s August 6, 2013, judgment entry of
sentence that Appellant now brings his timely appeal, assigning the
following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
BASED UPON INSUFFICIENT EVIDENCE TO SUSTAIN THE
SAME.
II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN THE
SENTENCING OF THE DEFENDANT-APPELLANT.”
ASSIGNMENT OF ERROR I
Hocking App. No. 13CA16 6
{¶9} In his first assignment of error, Appellant contends that the trial
court erred in failing to direct a verdict in his favor at the conclusion of the
State’s case, and that his conviction for aggravated robbery was not
supported by sufficient evidence.1 More specifically, Appellant argues that
evidence of a predicate theft offense was lacking, and without such, there
can be no aggravated robbery. Appellant also suggests that the use of the
firearm was in furtherance of a drug transaction, rather than a theft offense.
{¶10} “A motion for acquittal under Crim.R. 29(A) is governed by
the same standard as the one for determining whether a verdict is supported
by sufficient evidence.” State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-
2417, 847 N.E.2d 386 (2006), ¶ 37. When reviewing the sufficiency of the
evidence, our inquiry focuses primarily upon the adequacy of the evidence;
that is, whether the evidence, if believed, reasonably could support a finding
of guilt beyond a reasonable doubt. State v. Thompkins, 78 Ohio St. 3d 380,
386, 678 N.E.2d 541 (1997) (stating that “sufficiency is a test of adequacy”);
State v. Jenks, 61 Ohio St. 3d 259, 274, 574 N.E.2d 492 (1991). The standard
of review is whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the
1
Upon the close of the State’s case, Appellant made a motion for acquittal under Crim.R. 29(A), which
was denied by the trial court.
Hocking App. No. 13CA16 7
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, (1979); Jenks at 273. Furthermore, a reviewing court is not to
assess “whether the state's evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.”
Thompkins at 390.
{¶11} Thus, when reviewing a sufficiency-of-the-evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. State v. Hill, 75 Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996);
State v. Grant, 67 Ohio St. 3d 465, 477, 620 N.E.2d 50 (1993). A reviewing
court will not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the trier of fact
did. State v. Tibbetts, 92 Ohio St. 3d 146, 162, 749 N.E.2d 226 (2001); State
v. Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749 (2001).
{¶12} On appeal, Appellant challenges his conviction for aggravated
robbery, a first degree felony in violation of R.C. 2911.01(A)(1), as well as
the firearm specification attached thereto. R.C. 2911.01 provides, in
pertinent part, as follows:
“(A) No person, in attempting or committing a theft offense,
as defined in section 2913.01 of the Revised Code, or in
Hocking App. No. 13CA16 8
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[.]”
The firearm specification at issue was brought pursuant to R.C. 2941.145.
{¶13} Here, a review of the trial transcript indicates that three
different witnesses testified on behalf of the State, claiming that Appellant
emerged from the back seat of a vehicle with a gun and ordered both
Thomas Bailey and Michael Herrold to the ground. Sarah Williamson
testified that this occurred in the midst of a drug transaction, after she had
handed cash for drugs to someone in the front seat of the car. She testified
that after she handed over the money to an occupant in the front seat,
Appellant, who was seated in the back, jumped out with a gun. Thomas
Bailey testified that he randomly stopped by Williamson’s house, denying
that he was involved in a drug transaction, and that Appellant jumped out of
the backseat of a vehicle, approached him with a gun, ordered him to the
ground, searched his pockets and took his money. Michael Herrold testified
that although he was ordered to the ground he did not get down, but instead
Hocking App. No. 13CA16 9
stood as Appellant went through Bailey’s pockets. Subsequently, as
Appellant fled and tried to catch up with the vehicle as it was driving off,
and as Bailey and Herrold tried to chase Appellant, there was testimony that
Appellant turned and shot the gun, hitting Herrold in the leg. Much like
Bailey, Herrold also denied any knowledge of a drug transaction.
{¶14} Despite the fact the testimony differed with respect to whether
a drug transaction was taking place, all three witnesses testified that
Appellant emerged from the vehicle, with a gun, and robbed Bailey. Thus,
the State presented evidence which, if believed, would indicate that an
aggravated robbery occurred, and that each element of the crime, as set forth
above, was met. We now turn to Appellant’s argument regarding the use of
the firearm, and whether it was used in furtherance of a theft offense.
Although there is some question as to whether the firearm subsequently
recovered from the vehicle was the same gun Appellant used during the
commission of the crime, and although there appeared to be some questions
raised as to who actually shot Herrold based upon the expert testimony that
there was no gun residue on Appellant’s hands, three people testified that
Appellant possessed and brandished a gun with a silver handle as he robbed
Bailey.
Hocking App. No. 13CA16 10
{¶15} We, as a Court, are not called upon to determine the credibility
of these witnesses, nor weigh the evidence that was presented. Rather, in
considering a sufficiency of the evidence challenge, as set forth above, we
must assess whether the State’s evidence, if believed, would support a
conviction. Thompkins, supra, at 390. Further, in making this assessment,
we “must construe the evidence in a light most favorable to the prosecution.”
Hill at 205 and Grant at 477, supra. Because we conclude, based upon the
evidence presented, that reasonable minds could conclude that all of the
essential elements of the offense of aggravated robbery had been proven
beyond a reasonable doubt, we will not overturn Appellant’s conviction
based upon a sufficiency of the evidence challenge. Accordingly,
Appellant’s first assignment of error is without merit and is, therefore,
overruled.
ASSIGNMENT OF ERROR II
{¶16} In his second assignment of error, Appellant contends that the
trial court committed harmful error in sentencing him. More specifically,
Appellant raises three issues: 1) did the trial court properly determine that
the offenses of aggravated robbery and felonious assault should not merge;
2) did the trial court’s sentencing of Appellant constitute harmful error; and
3) may a trial court order consecutive sentences with respect to firearm
Hocking App. No. 13CA16 11
specifications under the circumstances found herein? The State responds by
arguing that the trial court properly found that the sentences did not merge
because the offenses had separate victims, and that the trial court properly
imposed two consecutive three-year terms of imprisonment for the firearm
specifications pursuant to and as required by R.C. 2929.14(B)(1)(g). For the
following reasons, we agree with the State.
{¶17} Appellate courts apply a de novo standard of review in
reviewing a trial court's application of the merger statute, R.C. 2941.25.
State v. Williams, 134 Ohio St. 3d 482, 488, 2012-Ohio-5699, 983 N.E.2d
1245, ¶¶ 25-28. “Appellate courts apply the law to the facts of individual
cases to make a legal determination as to whether R.C. 2941.25 allows
multiple convictions .” Id.
{¶18} R.C. 2941.25 “codifies the protections of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple
punishments for the same offense.” State v. Underwood, 124 Ohio St. 3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute states:
“(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
Hocking App. No. 13CA16 12
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.”
{¶19} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-
3170, ¶ 103, we set forth the analysis that applies when determining if
offenses should merge under R.C. 2941.25:
“Through a series of opinions the Supreme Court of Ohio has
advised and re-advised lower courts on the difficult task of
applying Ohio's multiple-count statute to determine which
criminal convictions require merger.' [ State v. Delawder, 4th
Dist. Scioto App. No. 10CA3344, 2012-Ohio-1923, ¶ 39]. In
the plurality decision of State v. Johnson, 128 Ohio St. 3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, the Court expressly
overruled its then current test for merger. Under the new test,
the trial court must first determine ‘whether it is possible to
Hocking App. No. 13CA16 13
commit one offense and commit the other with the same
conduct, not whether it is possible to commit one without
committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the
offenses are so alike that the same conduct can subject the
accused to potential culpability for both, they are ‘of similar
import’ and the court must proceed to the second step. The
court must then determine whether the offenses in fact were
committed by the same conduct, i.e., committed as a single act
with a single animus. Id. at ¶ 49. If so, merger is necessary.
However, if the offenses resulted from separate acts or were
performed with a separate animus, or if the commission of one
offense will never result in the commission of the other, the
offenses will not merge. Id. at ¶ 51.”
{¶20} Here, a review of the record reflects that although the
aggravated robbery and felonious assault charges stemmed from the same
course of conduct, each charge involved a different victim. Thomas Bailey
was the victim of aggravated robbery while Michael Herrold was the victim
of felonious assault. Ohio courts have routinely recognized that separate
convictions and sentences are permitted when the same course of conduct
affects multiple victims. State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-
Hocking App. No. 13CA16 14
5304, 776 N.E.2d 26, ¶ 48 (finding the court could impose multiple
punishments for aggravated arson as defendant “caused six offenses of
dissimilar import because six different people were placed at risk” when
defendant set one structure on fire); State v. Jones, 18 Ohio St. 3d 116, 480
N.E.2d 408 (1985) (determining that defendant could be sentenced for two
convictions of aggravated vehicular homicide, even though the convictions
arose out of the same conduct, when the conduct resulted in the death of two
individuals); State v. Crisp, 4th Dist. Scioto No. 10CA3404, 2012-Ohio-
1730, ¶ 36 (finding that “[i]n situations where a defendant has knowledge
that more than one victim could be harmed, courts have concluded there is a
separate animus for each victim at risk”); State v. Tapscott, 7th Dist.
Mahoning No. 11 MA 26, 2012-Ohio-4213, ¶ 41; quoting Jones at 118
(“multiple sentences for a single act committed against multiple victims is
permissible where the offense is defined in terms of conduct toward ‘another
as such offenses are of dissimilar import; the import being each person
affected.’ ”); State v. Angus, 10th Dist. No. 05AP-1054, 2006-Ohio-4455, ¶
34 (“Where a defendant's conduct injures multiple victims, the defendant
may be convicted and sentenced for each offense involving a separate
victim.”).
Hocking App. No. 13CA16 15
{¶21} Because Appellant’s aggravated robbery and felonious assault
convictions involved two different victims, the imposition of multiple
punishments does not offend double jeopardy principles or R.C. 2941.25.
The offenses are of dissimilar import because each offense involved a
different victim. Consequently, the trial court did not err by failing to merge
the convictions.
{¶22} We next consider Appellant’ argument with respect to the
imposition of two three-year terms of imprisonment on the firearm
specifications, which were ordered to be served consecutively to each other,
and consecutively to the consecutive sentences imposed on the aggravated
robbery and felonious assault convictions. Appellant’s argument is
primarily premised upon his contention that aggravated robbery and
felonious assault were allied offenses of similar import that should have
been merged. We have already determined that they are not allied offenses
of similar import under these facts and should not have been merged for
purposes of sentencing. Appellant further argues, however, that even if it is
determined that those offenses should not merge, that the firearm
specifications must be viewed as “coming from a single transaction and may
not be ordered to run consecutive to one another.” We disagree.
Hocking App. No. 13CA16 16
{¶23} Several statutory provisions are relevant to our analysis of this
issue. R.C. 2929.14(B)(1)(a)(ii) requires a trial court to impose a three-year
prison term upon an offender who is convicted of or pleads guilty to a R.C.
2941.145 firearm specification. R.C. 2929.14(B)(1)(b) precludes a trial court
from imposing “more than one prison term on an offender [for a firearm
specification] for felonies committed as part of the same act or transaction,”
unless R.C. 2929.14(B)(1)(g) authorizes it. State v. Ayers, 12th Dist. Warren
No. CA2011-11-123, 2013-Ohio-2641, ¶ 22; State v. Sheffey, 8th Dist.
Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 27.
{¶24} R.C. 2929.14(B)(1)(g) states:
“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
Hocking App. No. 13CA16 17
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)
{¶25} In State v. Isreal, 12th Dist. Warren No. CA2011-11-115,
2012-Ohio-4876, ¶ 73, the court recognized that R.C. 2929.14(B)(1)(g)
creates an exception to the general rule prohibiting multiple punishments for
firearm specifications arising out of a single transaction. The Isreal court
explained as follows:
“[R.C. 2929.14(B)(1)(g) ] carve[s] out an exception to the
general rule that a trial court may not impose multiple firearm
specifications for crimes committed within a single transaction.
The mandatory language of the statute (“the court shall
impose”) also indicates the General Assembly's intention that
the defendant serve multiple sentences for firearm
specifications associated with the enumerated crimes, such as
murder or felonious assault. Had the Legislature intended a per
se rule that sentences for firearm specifications must be served
concurrent with one another, it could have stated as much. Or,
the Legislature could have chosen not to codify R.C.
Hocking App. No. 13CA16 18
2929.14(B)(1)(g), which serves as an exception to the rule that
multiple firearm specifications must be merged for purposes of
sentencing when the predicate offenses were committed as a
single criminal transaction.” Id.
{¶26} Appellant was convicted of two felonies that are specified in
R.C. 2929.14(B)(1)(g): aggravated robbery and felonious assault.
Additionally, Appellant was convicted of two firearm specifications as
described in R.C. 2929.14(B)(1)(a) in connection with these two felonies.
Thus, according to R.C. 2929.14(B)(1)(g), the court was required to impose
on Appellant mandatory prison terms as described in 2929.14(B)(1)(a) for
the two most serious specifications of which Appellant was convicted, even
if, as Appellant argues, the crimes resulted from a single transaction. Israel,
at ¶ 71; accord Ayers at ¶ 24; Sheffey at 28; State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785, ¶¶ 10-11. Consequently, the trial
court did not err by ordering Appellant to serve the firearm specification
prison terms consecutively to one another. Likewise, we reject the argument
that the trial court erred by requiring Appellant to serve the firearm
specification prison terms consecutively to the aggravated robbery and
felonious assault prison terms. R.C. 2929.14(C)(1)(a) plainly requires an
offender to serve a mandatory prison term imposed for a firearm
Hocking App. No. 13CA16 19
specification “consecutively to any other mandatory prison term imposed
[for a firearm specification] * * * [and] consecutively and prior to any prison
term imposed for the underlying felony.”
{¶27} In light of the foregoing, we cannot conclude that the trial court
committed harmful error in sentencing Appellant. As such, Appellant’s
second assignment of error is without merit and is, therefore, overruled.
Having found no merit to either assignment of error raised by Appellant, we
affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Hocking App. No. 13CA16 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.