State v. Fleming

[Cite as State v. Fleming, 2022-Ohio-3158.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-61
:
v. : Trial Court Case No. 2021-CR-262
:
JAMAAL FLEMING : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of September, 2022.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 220,
Dayton, Ohio 45429
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Defendant-appellant Jamaal Fleming appeals from his convictions, following
no contest pleas, for escape and obstructing official business. Fleming contends the trial
court erred by failing to merge the two convictions for purposes of sentencing. Because
we find no error in sentencing, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} On April 14, 2021, Fleming was convicted by a jury of two counts of
aggravated trafficking in drugs and two counts of aggravated possession of drugs in Clark
C.P. No. 2020-CR-416. At the conclusion of that trial, the judge ordered Fleming held in
jail pending sentencing. Clark County Sheriff’s Deputies Miller and Dillahunt approached
Fleming to escort him to jail and noted that he was becoming upset. Upon speaking with
him, the deputies learned that Fleming had not known he would be held in jail while
awaiting sentencing. The deputies informed Fleming they would place him in a holding
cell and permit him to call his lawyer. Fleming then calmed down and agreed to
accompany the deputies. The deputies escorted Fleming from the courtroom, down an
elevator, and into the courthouse lobby.
{¶ 3} In the lobby, Fleming again began acting upset. Sheriff’s Deputy Biggert,
who was already in the lobby, approached in order to help maintain control. The
deputies began to place Fleming in handcuffs, at which point he began to pull away and
resist. Fleming threatened to take a gun from the deputies and stated that he would
force them to shoot him. He then attempted to grab Dillahunt’s service gun. Dillahunt
prevented Fleming from obtaining the gun by turning his body and stepping backward.
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At that point, Fleming became more aggressive and started “swinging and fighting” with
the deputies, and he then managed to break free from the deputies. Fleming ran out of
the building and fled. A foot chase ensued, but the deputies were unable to apprehend
Fleming. A few moments later, Fleming was observed entering a vehicle and driving
away. He was apprehended at a later date.
{¶ 4} On April 26, 2021, Fleming was indicted on one count of escape in violation
of R.C. 2921.34(A)(1) and one count of obstructing official business in violation of R.C.
2921.31(A). On October 18, 2021, he entered pleas of no contest to the charges. The
trial court accepted the pleas and found Fleming guilty of both charges. A sentencing
hearing was conducted on November 9, 2021. Fleming filed a motion seeking to merge
the counts, but the trial court declined to do so. The court sentenced Fleming to prison
terms of 12 months on obstructing official business and 36 months on the escape. The
trial court ordered the sentences be served consecutively to each other and consecutively
to the 30-month prison sentence imposed in Case No. 2020-CR-416, for an aggregate
prison term of 78 months.
{¶ 5} Fleming appeals.
II. Analysis
{¶ 6} Fleming’s sole assignment of error states:
THE TRIAL COURT ERRED IN DETERMINING THAT THE
OFFENSES OF ESCAPE AND OBSTRUCTING OFFICIAL BUSINESS DID
NOT MERGE AND IMPOSED CONSECUTIVE SENTENCES.
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{¶ 7} Fleming asserts that the offenses of escape and obstructing official business
should have merged.
{¶ 8} Our analysis of merger arguments is governed by the allied-offense statute,
R.C. 2941.25, which provides:
(A) Where the same conduct by [a] 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.
{¶ 9} “As a practical matter, when determining whether offenses are allied offenses
of similar import within the meaning of R.C. 2941.25, courts must ask three questions
when the defendant's conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they 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.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31;
State v. Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728, ¶ 29.
{¶ 10} The defendant bears the burden of establishing that offenses should be
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merged as allied offenses. State v. Albertson, 2d Dist. Montgomery No. 28722, 2021-
Ohio-2125, ¶ 95. We review the trial court's merger ruling de novo. Id.{¶ 11} R.C. 2921.34, which proscribes escape, states, in pertinent part, “[n]o
person, knowing the person is under detention, * * * or being reckless in that regard, shall
purposely break or attempt to break the detention * * *.” R.C. 2921.34(A)(1).
{¶ 12} The obstructing official business statute, R.C. 2921.31, states as follows:
(A) No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized act
within the public official's official capacity, shall do any act that hampers or
impedes a public official in the performance of the public official's lawful
duties.
{¶ 13} “A person acts purposely when it is the person's specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is the offender's
specific intention to engage in conduct of that nature.” R.C. 2901.22(A).
{¶ 14} For purposes of the escape statute, “[t]he word ‘detention’ as used in R.C.
2921.01(E) does not signify a place or a means of confinement, but rather it is an abstract
term which signifies a status.” State v. Smith, 29 Ohio App.3d 194, 195, 504 N.E.2d
1121 (8th Dist.1985), citing State v. Shook, 45 Ohio App.2d 32, 34, 340 N.E.2d 423 (3d
Dist.1975). “The breaking of detention as prohibited by R.C. 2921.34(A) is the
termination of the status of being in legal custody * * *.” Smith at paragraph one of the
syllabus. “The crime [ ] is not in breaking out of the [detention] but in willfully terminating
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the status of being detained[.]” Shook, at 34-35.
{¶ 15} “To be guilty of the offense of obstructing official business, an individual
must commit an overt act done with an intent to obstruct a public official, such as a police
officer, and the act must succeed in actually hampering or impeding that officer.” State
v. Gibson, 2019-Ohio-1022, 133 N.E.3d 1006, ¶ 18 (2d Dist.), citing State v. Davis, 2017-
Ohio-5613, 94 N.E.3d 194, ¶ 37 (2d Dist.). The offense requires “some substantial
stoppage of the officer's progress.” State v. Ellis, 2d Dist. Montgomery No. 24003, 2011-
Ohio-2967, ¶ 59, quoting State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, 879
N.E.2d 215, ¶ 17 (1st Dist.). However, there is no specific time frame that constitutes a
“substantial stoppage.” State v. Body, 2018-Ohio-3395, 117 N.E.3d 1024, ¶ 25 (2d
Dist.), citing Ellis at ¶ 59, quoting Wellman at ¶ 17. A defendant need not cause an officer
to fail in his duties, he need only disrupt the performance thereof. Id., citing State v.
Terry, 2d Dist. Montgomery No. 26722, 2016-Ohio-3484, ¶ 22.
{¶ 16} Fleming asserts that his two offenses should have merged. He first argues
the offenses were of similar import because there were no victims other than the sheriff’s
deputies. He further argues the offenses were part of the same transaction and were
committed with the same animus; specifically, he claims that all of his actions were taken
in furtherance of his attempt to escape detention and that he had no motivation other than
escape. Fleming cites State v. Anderson, 9th Dist. Summit Nos. 29275, 29276, 2019-
Ohio-5220, claiming it recognizes the necessity of merging the two offenses. 1
1 We have read the Anderson case and conclude it does not address the issue of whether
the offenses of escape and obstructing official business were subject to merger.
Therefore, it has no bearing on our analysis.
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Conversely, the State maintains that merger was inappropriate under the third part of the
Ruff analysis, i.e., that the offenses in question were committed with a separate animus.
{¶ 17} “Whether offenses are committed separately often hinges on whether there
is a temporal or spatial separateness in the offenses.” State v. Vanausdal, 3d Dist.
Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 14, citing State v. Skapik, 2d Dist. Champaign
No. 2015-CA-5, 2015-Ohio-4404, ¶ 19; State v. Anderson, 1st Dist. Hamilton No. C-
110029, 2012-Ohio-3347, ¶ 24. A court may conclude that a defendant’s offenses
involved separate conduct when the defendant breaks “a temporal continuum started by
his initial act.” (Citations omitted.) State v. Nuh, 10th Dist. Franklin No. 10AP-31, 2010-
Ohio-4740, ¶ 16. “[E]ven a ‘slight’ temporal separation of the offenses can establish
separate offenses.” Vanausdal at ¶ 14. Accord State v. Jackson, 1st Dist. Hamilton No.
C-090414, 2010-Ohio-4312, ¶ 26; State v. Taylor, 2d Dist. Montgomery No. 23990, 2014-
Ohio-3647, ¶ 12.
{¶ 18} The term “animus” means “ ‘purpose or, more properly, immediate motive.’ ”
State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 40, quoting State v.
Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). “ ‘Where an individual's
immediate motive involves the commission of one offense, but in the course of committing
that crime he must, [a] priori, commit another, then he may well possess but a single
animus, and in that event may be convicted of only one crime.’ ” State v. Ramey, 2015-
Ohio-5389, 55 N.E.3d 542, ¶ 70 (2d Dist.), quoting Logan at 131. In other words, “[i]f the
defendant acted with the same purpose, intent, or motive in both instances, the animus
is identical for both offenses.” State v. Swartz, 2d Dist. Miami No. 2019-CA-17, 2020-
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Ohio-5037, ¶ 23; State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885,
¶ 13.
{¶ 19} In this case, the presentence investigation report (PSI), to which Fleming
did not object, demonstrated that Fleming became upset when he learned he would be
jailed pending sentencing. In the courthouse lobby, Fleming became argumentative,
which caused the deputies to attempt to handcuff him. As the deputies tried to handcuff
him, Fleming began to resist physically, and he made a threat to take a gun and force the
deputies to shoot him. The PSI recounted that Fleming had attempted to grab Dillahunt’s
firearm but was thwarted when Dillahunt moved back from the fray. At that point,
Fleming began to actually swing at and fight with the deputies until he broke free from
their grasps. Fleming then fled the building and led the deputies on a foot chase.
{¶ 20} Based upon this record, the trial court could have reasonably concluded that
Fleming had committed and completed the obstruction of official business offense before
he broke or attempted to break from detention, with the escape occurring when he broke
from the deputies’ grasp and fled the courthouse. Thus, it was reasonable for the trial
court to conclude that the offenses were committed separately. Further, based upon the
sequence of events, the trial court could have concluded that Fleming’s animus for
fighting with the deputies was to avoid being handcuffed and that he did not form the
intent to escape until he realized he had broken free of the deputies. Thus, we cannot
say the trial court erred in concluding that the offenses were separate occurrences
committed with separate intent.
{¶ 21} Finally, although Fleming’s statement of his assignment of error mentions
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that the trial court imposed consecutive sentences, Fleming does not argue that there
was any error regarding the consecutive nature of the sentence other than as it pertains
to the issue of merger. In any case, we have reviewed the record and find the trial court
made the required statutory findings for the imposition of consecutive sentences. See
R.C. 2929.14(C)(4). Further, the record contains evidence that Fleming had a significant
juvenile record, including two separate adjudications for offenses that would have
constituted felonies had he committed them as an adult. He also had an extensive
history of offenses committed as an adult; Fleming was sentenced to prison for four of
those offenses. At the time of the offenses in this case, Fleming was under detention
and being escorted to jail to await sentencing for felony offenses of aggravated trafficking
in drugs and aggravated possession of drugs. Based upon this history, we cannot
conclude by clear and convincing evidence that the record did not support the trial court's
R.C. 2929.14(C)(4)(3)(c) finding that Fleming's history of criminal conduct demonstrated
consecutive sentences were necessary to protect the public from future crime. Thus, the
trial court's imposition of consecutive sentences will not be disturbed.
{¶ 22} The assignment of error is overruled.
III. Conclusion
{¶ 23} Fleming’s assignment of error being overruled, the judgment of the trial
court is affirmed.
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DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Ian A. Richardson
Adam James Stout
Hon. Douglas M. Rastatter