State v. Asbury

2017 Ohio 1005

• Court: Ohio Court of Appeals
• Decided: March 20, 2017
• Docket: 2016-T-0052
• Status: Published

Opinion

[Cite as State v. Asbury, 2017-Ohio-1005.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2016-T-0052 - vs - :

JACOB JONATHAN ASBURY, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00835.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant- Appellant).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Jacob Jonathon Asbury, appeals from the judgment of the

Trumbull County Court of Common Pleas convicting him of one count of felonious

assault and one count of attempted murder. The issues in this appeal are whether

appellant’s convictions are against the manifest weight of the evidence and whether the

trial court erred in failing to merge all counts of which appellant was convicted. We

affirm the trial court’s judgment. {¶2} On October 5, 2015, Laddonna Allgood invited appellant to her apartment.

Ms. Allgood was a tenant of Gail Downing and the apartment is located behind Ms.

Downing’s home.

{¶3} Appellant and Ms. Allgood had an on-again, off-again romantic

relationship. Appellant arrived at Ms. Allgood’s residence and the two engaged in

sexual intercourse. Later, they were conversing and appellant requested to borrow $15

from Ms. Allgood. She refused and indicated she intended on going out with some

friends the following evening. Appellant moved behind Ms. Allgood where she was

sitting and wrapped his arms around her chest, as if to hug her. Suddenly, he lifted one

arm and wrapped it around her neck. Before Ms. Allgood could react, appellant began

to strangle her. Ms. Allgood recalled, within three to five seconds, she “blacked out”

and, when she awoke, she noticed her neck was bleeding. She had trouble standing

and noted she was very weak. Appellant assisted Ms. Allgood into the bathroom where

she observed two holes in her neck. At first, she though appellant had ripped her skin

in the course of rendering her unconscious; later, she learned she was stabbed a total

of five times.

{¶4} Meanwhile, as Ms. Allgood was attending to her wounds, appellant was

pacing and murmuring that he was going to jail. The two concluded they would invent a

story regarding how her injuries were occasioned. Appellant attempted to dial 911, but

was unable to unlock Ms. Allgood’s phone. Ms. Allgood was subsequently successful

and explained to the dispatcher that she had fallen, was bleeding from her neck, and

was losing a lot of blood.

2 {¶5} After the call, appellant left the residence, but returned several minutes

later. Because they believed the emergency personnel were taking too long, appellant

suggested he drive Ms. Allgood to Trumbull Memorial Hospital. While appellant and

Ms. Allgood were on their way to the hospital, an ambulance and Warren Township

Police Officer Chad Beran arrived at the residence; the officer made contact with Ms.

Downing, who took the first responders to Ms. Allgood’s apartment. Upon entering, the

officer noted where they found a significant amount of blood throughout the residence.

{¶6} After arriving at Trumbull Memorial, Ms. Allgood learned she had been

stabbed once in the jaw, once in the hand, once in the shoulder, and twice in the neck.

Officer Beran ultimately made contact with her at the hospital where Ms. Allgood

reported appellant had choked her and, when she woke up, she was bleeding. After

evaluating her condition, doctors were unable to stop Ms. Allgood’s bleeding. She was

subsequently life-flighted to St. Elizabeth’s Hospital, where she spent approximately

four days.

{¶7} While Ms. Allgood was being treated, Officer Beran took custody of

appellant from Warren City Police Officers, who had detained him in Trumbull

Memorial’s parking lot. Appellant was Mirandized and placed in the back of the officer’s

cruiser. Officer Beran subsequently inventoried appellant’s vehicle where he found a

bloody towel, a bloody phone, and blood on the front-passenger seat. The officer asked

appellant where he left the knife and appellant advised that the knife was in the sink at

Ms. Allgood’s residence. Officer Beran related the information to Warren Township

Police Chief, Donald Bishop, who was at Ms. Allgood’s apartment. The Chief located

the knife in a bowl of reddish water near the sink.

3 {¶8} Appellant was transported to the Warren Township Police Station to be

interviewed by Investigator Jeffrey Smith. Appellant acknowledged he had been

Mirandized and, while the investigator was preparing paperwork, appellant voluntarily

admitted that he had stabbed Ms. Allgood.

{¶9} Appellant was indicted on one count of felonious assault, a felony of the

second degree, in violation of R.C. 2903.11(A)(2); one count of felonious assault, a

felony of the second degree, in violation of R.C. 2903.11(A)(1); and one count of

attempted murder, a felony of the first degree, in violation of R.C. 2923.02(A) and R.C.

2903.02(A) and (D). The matter proceeded to jury trial after which appellant was found

guilty on all three charges. At sentencing, the trial court merged count one (felonious

assault) with count three (attempted murder). The trial court sentenced appellant to five

years imprisonment on the remaining felonious assault count and 11 years on the

attempted murder count, each to run consecutive to one another, for an aggregate

prison term of 16 years.

{¶10} Appellant now appeals and assigns two errors. His first assignment of

error provides:

{¶11} “The appellant’s convictions are against the manifest weight of the

evidence.”

{¶12} A court reviewing the manifest weight observes the entire record, weighs

the evidence and all reasonable inferences, considers the credibility of the witnesses

and determines whether, in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

4 reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994

WL 738452, *5 (Dec. 23, 1994).

{¶13} Appellant challenges only his conviction for attempted murder. He asserts

the conviction is against the manifest weight of the evidence because: (1) he attempted

to call 911; and (2) although he initially left the scene of the incident, he returned to

transport Ms. Allgood to the hospital. Appellant contends these acts are indicative of

good faith and remorse and, as a result, militate heavily against the attempted murder

conviction. We do not agree.

{¶14} R.C. 2923.02(A) provides: “No person, purposely or knowingly, and when

purpose or knowledge is sufficient culpability for the commission of an offense, shall

engage in conduct that, if successful, would constitute or result in the offense.” In this

case, the underlying offense is murder.

{¶15} The state produced evidence that appellant strangled Ms. Allgood until

she passed out; and, while she was unconscious, appellant obtained a knife from the

kitchen and admittedly stabbed her five times with a paring knife, two of which were in

the neck and one on the upper-jaw area. Photographs introduced into evidence

demonstrate the wounds were relatively deep and testimony established that

emergency-room physicians at Trumbull Memorial were unable to stop Ms. Allgood’s

bleeding. She was eventually life-flighted to St. Elizabeth’s where she spent at least

four days in the hospital; these final points emphasize the severity of the injuries Ms.

Allgood sustained as a result of the stab wounds.

{¶16} Through strangulation, appellant rendered Ms. Allgood unconscious, and

subsequently stabbed her five times, three of which were on or near vital areas of Ms.

5 Allgood’s body. From this evidence, the jury could conclude, beyond a reasonable

doubt, that appellant acted with the specific intention to kill Ms. Allgood, i.e., that he

attempted to murder Ms. Allgood.

{¶17} We recognize that, after the assault and stabbings, appellant attempted to

call 911 and drove Ms. Allgood to the hospital; these facts, however, do not negate the

inference that his purposeful actions were indicative of an intention to kill her. His

actions after the assault and attempted murder, while potentially relevant to sentence

mitigation, do not affect the significant evidence militating in favor of the jury’s verdict.

{¶18} We therefore hold there was credible and compelling evidence to support

the jury’s verdict. Accordingly, the conviction for attempted murder was not against the

manifest weight of the evidence.

{¶19} Appellant’s first assignment of error lacks merit.

{¶20} Appellant’s second assignment of error provides:

{¶21} “The trial court erred, as a matter of law, by failing to merge all counts at

sentencing.”

{¶22} Under this assigned error, appellant argues the trial court erred when it

sentenced him to consecutive prison terms for felonious assault (for the strangulation)

and attempted murder. He contends the crimes are of similar import and the

occurrence of the choking occurred during the same course of conduct as the actions

which were the foundation of the attempted murder charge, i.e., the stabbings. We do

not agree.

6 {¶23} R.C. 2941.25 reflects the General Assembly’s intent to prohibit or allow

multiple punishments for two or more offenses resulting from the same conduct. State v.

Washington, 137 Ohio St.3d 427, 2013–Ohio–4982, ¶11. The statute provides:

{¶24} (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment * * * may contain counts for all such offenses, but the defendant may be convicted of only one.

{¶25} (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 * * * may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶26} With respect to the foregoing statute, the Supreme Court has explained:

{¶27} A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (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.

{¶28} The evidence in this case demonstrates that appellant’s act of

strangulation and the stabbing were of dissimilar import insofar as they caused separate

harm to Ms. Allgood. The act of strangulation caused her to lose consciousness, while

the multiple stab wounds left deep gashes in her flesh causing her to bleed profusely;

while the former arguably facilitated the latter, the harm is fundamentally

distinguishable. Moreover, the crimes were committed separately; to wit, temporally,

the strangulation occurred before appellant stabbed Ms. Allgood and, practically, each

7 crime was accomplished by a separate and distinct means. Finally, the act of

strangulation required a separate animus or intention apart from the act of stabbing.

When appellant wrapped his arm around Ms. Allgood’s throat, his apparent intention

was to cause a vascular restriction sufficient for her to lose consciousness or worse.

Once Ms. Allgood was rendered unconscious, appellant obtained a knife with the

separate intention of lacerating her flesh.

{¶29} Although only one is necessary, each of the three Ruff factors are present

in this case. Hence, the trial court did not err in declining to merge felonious assault (via

strangulation) with attempted murder (via stabbing).

{¶30} Appellant’s second assignment of error lacks merit.

{¶31} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.