State v. Woodson

[Cite as State v. Woodson, 2011-Ohio-2796.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95852
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARREN WOODSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-540104
BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 9, 2011
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ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Oscar E. Albores
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Darren Woodson (“Appellant”) appeals from his convictions for
kidnapping and domestic violence entered on September 28, 2010, in the
Cuyahoga County Court of Common Pleas. Appellant argues that the
evidence presented at his bench trial was insufficient as a matter of law to
support his kidnapping conviction and that the trial court at sentencing did
not properly consider the purposes and principles of felony sentencing
contained in R.C. 2929.11 or the seriousness and recidivism factors in R.C.
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2929.12. For the following reasons, we affirm.
{¶ 2} Appellant was indicted on August 2, 2010 with kidnapping in
violation of R.C. 2905.01(A)(3) (Count 1) and domestic violence in violation of
R.C. 2919.25(A) (Count 2). Appellant pled not guilty and his case proceeded
to a bench trial on September 28, 2010.
{¶ 3} At trial, Jatoya Greathouse (“Greathouse”) testified that on the
morning of July 15, 2010, appellant called her and requested that she drive
him to see his parole officer. Appellant and Greathouse had known each
other for three and a half years and share a two-year-old daughter. Despite
the existence of a restraining order in her favor that prevented the appellant
from contact with Greathouse, she agreed to give him a ride. Greathouse
drove to appellant’s grandmother’s house at 1416 East 84th Street, Cleveland,
Ohio, where appellant had been living since she and appellant had separated.
Appellant was on the porch with a female friend. Also present was
appellant’s cousin, Cleveland Frazier.
{¶ 4} Appellant entered Greathouse’s car and they began arguing over
the female friend. Appellant exited the car with Greathouse’s cell phone for
the purpose of calling another male with whom he believed Greathouse was
romantically involved. Greathouse also exited her car and a struggle over
the cell phone then ensued between herself and the appellant. Greathouse
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stands 5’4” and weighs 125 pounds while appellant is 6’1” and weighs 160
pounds. During the struggle over the phone, appellant overpowered
Greathouse and held her up against a car that was parked in the driveway of
the home. Greathouse held onto appellant’s pants and was eventually able
to knock the cell phone out of his hand. Appellant then began to choke
Greathouse with two hands around her neck while she was pressed against
the car. Greathouse tried to free herself but was unable to do so.
Eventually, Cleveland Frazier intervened and he was able to pull the
appellant away from Greathouse.
{¶ 5} Greathouse testified that once they were separated, the appellant
approached her car for the purpose of taking her keys. Greathouse testified
that a second struggle occurred inside the car where appellant, sitting in the
driver’s seat, again choked her with two hands while she was in the
passenger seat. Appellant eventually released Greathouse and, armed with
a small foot-long souvenir baseball bat, she fled into appellant’s
grandmother’s house to use the home phone to call 911. She testified that
she was unable to use her own cell phone to call 911.
{¶ 6} While she was in the process of calling 911 with the home phone,
the appellant entered the house, knocked her down and into a chair and again
began to choke her. Greathouse struck appellant in the head with the house
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phone and, with the assistance of Frazier, she was able to get appellant off of
her. Frazier and the appellant exited the house and Greathouse locked
herself inside the home until police arrived at the scene.
{¶ 7} Cleveland Frazier testified that he witnessed the appellant choke
Greathouse outside of the home and also witnessed the latter choking episode
inside of the home. His version of the altercation did not include any
choking inside of the car, however.
{¶ 8} The State’s third, and final, witness, Tiana Lewis, arrived on the
scene midway through the altercation and saw the appellant and Greathouse
“tussling.” She observed Greathouse enter the house and also observed
appellant choke her until she and Frazier assisted in pulling the appellant off
of Greathouse. Finally, appellant testified on his own behalf and denied
choking Greathouse at any point during the altercation.
{¶ 9} At the conclusion of the State’s case, the defense made a motion
for a Rule 29 judgment of acquittal. The trial court denied appellant’s
motion. Appellant renewed his Rule 29 motion at the close of the trial. The
trial court again denied the motion and returned a guilty verdict as to both
counts. Appellant was sentenced to three years on Count 1 and one and a
half years on Count 2 to run consecutive to one another. Appellant was also
advised of a five years mandatory period of postrelease control. It is from
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this judgment that appellant presently appeals.
{¶ 10} In his first assignment of error, appellant argues that the trial
court erred in failing to grant his Rule 29 motion for acquittal because the
evidence produced by the State at trial was insufficient as a matter of law to
support a guilty verdict as to the charge of kidnapping.
{¶ 11} “An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.
The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” State v.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus (superseded by statute and constitutional amendment on other
grounds). 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.” State v. Thompkins, 78 Ohio St.3d 380, 390,
1997-Ohio-52, 678 N.E.2d 541. (Cook, J., concurring.)
{¶ 12} The elements of the kidnapping offense for which appellant was
convicted are set forth in R.C. 2905.01: “(A) No person, by force, threat, or
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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: * * * (3) To terrorize, or to inflict serious physical harm on
the victim or another.”
{¶ 13} Appellant argues that the trial court erred in denying his motion
for acquittal as to the kidnapping charge because the state failed to present
evidence establishing that appellant restrained Greathouse’s liberty. This
court has previously defined the element of “restrain the liberty of the other
person” to mean “to limit one’s freedom of movement in any fashion for any
period of time.” State v. Wingfield (Mar. 7, 1996), Cuyahoga App. No. 69229;
see, also, State v. Walker (Sept. 2, 1998), Medina App. No. 2750-M, (restraint
of liberty does not require prolonged detainment); State v. Messineo (Jan. 6,
1993), Athens App. Nos. 1488 and 1493, (grabbing victim’s arm and shaking
her constituted restraint).
{¶ 14} “[Furthermore,] [a]n offense under R.C. 2905.01 does not depend
on the manner in which an individual is restrained. * * * Rather, it depends
on whether the restraint ‘is such as to place the victim in the offender’s power
and beyond immediate help, even though temporarily.’ * * * The restraint
‘need not be actual confinement, but may be merely compelling the victim to
stay where he is.’ ” State v. Mosley, 178 Ohio App.3d 631, 635-636, 899
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N.E.2d 1021, quoting State v. Wilson (Nov. 2, 2000), Franklin App. No.
99AP-1259, quoting 1974 Committee Comment to R.C. 2905.01.
{¶ 15} We have previously held that choking can constitute a restraint of
liberty. State v. Ellis, Cuyahoga App. No. 90844, 2008-Ohio-6283, at ¶31,
overruled on other grounds. Other Ohio courts have similarly treated
instances of choking as kidnapping. See State v. Williamson (Jan. 10, 1994),
Clermont App. No. CA93-04-034; State v. Snodgrass (Oct. 26, 1994), Wayne
App. No. 2879.
{¶ 16} Similarly, in the instant matter, viewing the evidence in a light
most favorable to the State, we find that the State presented sufficient
evidence of kidnapping. Greathouse testified that while being choked
against a car by appellant she tried to free herself but could not. Additionally,
when Greathouse sought to call 911 for help, appellant pursued her into the
house, knocked her into a chair, and choked her. His actions restrained her
liberty and prevented her from calling authorities for help. Furthermore,
though not addressed by appellant, we note that the purpose to terrorize, as
required by R.C. 2905.01(A)(3), is satisfied by the act of choking as we
previously held in State v. Wingfield (Mar. 7, 1996), Cuyahoga App. No.
69229.
{¶ 17} Accordingly, we conclude this evidence, if believed, would
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convince the average mind of the defendant’s guilt of kidnapping beyond a
reasonable doubt. Therefore, the appellant’s first assignment of error is
overruled.
{¶ 18} Appellant’s second assignment of error asserts that the trial court
at sentencing failed to properly consider the purposes and principles of felony
sentencing contained in R.C. 2929.11 or the seriousness and recidivism
factors of R.C. 2929.12.
{¶ 19} This court has recognized that we review felony sentences using
the Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124; State v. Brunning, Cuyahoga App. No. 95376,
2011-Ohio-1936. In Kalish, the Ohio Supreme Court applied a two-prong
approach to appellate review of felony sentences. Appellate courts must first
“examine the sentencing court’s compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law.” Kalish at ¶4. If this first prong is
satisfied, then we review the trial court’s decision under an
abuse-of-discretion standard. Id. at ¶4 and 19.
{¶ 20} In the first step of our analysis, we review whether the sentence
is contrary to law as required by R.C. 2953.08(G). “[T]rial courts have full
discretion to impose a prison sentence within the statutory range and are no
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longer required to make findings and give reasons for imposing maximum,
consecutive or more than the minimum sentence.” Id. at ¶11, citing State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶100. The Kalish
court declared that although Foster eliminated mandatory judicial
fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a
result, the trial court must still consider these statutes when imposing a
sentence. Id.{¶ 21} R.C. 2929.11(A) provides that:
{¶ 22} “A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing[,] * * * to protect the public from
future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.”
{¶ 23} R.C. 2929.12 provides a nonexhaustive list of factors a trial court
must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses.
{¶ 24} The Kalish court also noted that R.C. 2929.11 and 2929.12 are
not fact-finding statutes like R.C. 2929.14. Kalish at ¶17. Rather, they
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“serve as an overarching guide for trial judges to consider in fashioning an
appropriate sentence.” Id. Thus, “[i]n considering these statutes in light of
Foster, the trial court has full discretion to determine whether the sentence
satisfies the overriding purposes of Ohio’s sentencing structure.” Id.{¶ 25} In the instant case, we do not find appellant’s sentence to be
contrary to law. The trial court sentenced appellant to consecutive sentences
within the permissible statutory range for his convictions. In the sentencing
journal entry, the trial court acknowledged that it had considered all factors
of law and found that prison was consistent with the purposes of R.C.
2929.11. On these facts, we cannot conclude that his sentence is contrary to
law.
{¶ 26} Having satisfied the first step, we next consider whether the trial
court abused its discretion. Kalish at ¶4 and 19. An abuse of discretion is
more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable. Id. at ¶19, quoting Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.
Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
{¶ 27} The trial court did not abuse its discretion in imposing a four and
a half year prison sentence in the present case. The trial court allowed
appellant and his counsel to advocate a lighter sentence. Appellant argued
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that his legal troubles arose solely from interactions with Ms. Greathouse.
The court heard from Ms. Greathouse who feared that if appellant was
quickly released he would threaten her family. The court noted that
appellant’s conduct was so serious that a member of his own family and
household felt compelled to testify truthfully against him. We find nothing
in the record to suggest that the trial court’s decision was unreasonable,
arbitrary, or unconscionable. Accordingly, appellant’s second assignment of
error is overruled.
{¶ 28} The judgment of the trial court is 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.
EILEEN A. GALLAGHER, JUDGE
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JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR