State v. Conrad

2014 Ohio 1757

Opinion

[Cite as State v. Conrad, 2014-Ohio-1757.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13 CA 18 GEORGE F. CONRAD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 19

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 24, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GREGG MARX JAMES L. DYE PROSECUTING ATTORNEY Post Office Box 161 DARCY T. COOK Pickerington, Ohio 43147 ASSISTANT PROSECUTOR 239 West Main Street, Suite 101 Lancaster, Ohio 43130 Fairfield County, Case No. 13 CA 18 2

Wise, J.

{¶1} Appellant George F. Conrad appeals his sentence entered in the Fairfield

County Court of Common Pleas following a guilty plea to two counts of Felonious

Assault with two separate firearm specifications, one count of Improperly Discharging a

Firearm into a Habitation, one count of Violation of a Protective Order, one count of

Menacing by Stalking, and one count of Tampering with Evidence.

{¶2} Appellee is the State of Ohio.

STATEMENTS OF THE FACTS AND CASE

{¶3} The relevant facts as set forth in the Bill of Particulars, the State’s

Sentencing Memorandum and the statements made at the Sentencing Hearing are as

follows:

{¶4} Appellant George F. Conrad and Mindy M. Conrad were married with two

daughters, but in the fall of 2011, they separated after being together for 18 years.

{¶5} Appellant began sending Misty hundreds of text messages in August and

September 2011, many of which caused her to fear for her safety. Misty "lived in fear***

[and] had a constant feeling of the hair standing up on the back of [her] neck and the

urge to look over [her] shoulder." (Sent. T. at 5). On one occasion, Appellant waited for

her in his car after he elicited help from his sister to talk Misty into meeting her. On

numerous occasions, Appellant stood along the road between Misty's home and work

with a sign that said, "I love you."

{¶6} Appellant told Misty, friends, and family that he would kill her if he ever

saw her with another man. (Sent. T. at 34). Then as time went on, Appellant began

telling people he was going to kill Misty and attempted to acquire a gun. (Sent. T. at 9, Fairfield County, Case No. 13 CA 18 3

34). As a result of this behavior, Appellant had charges in Pickaway County, Ohio and

Fairfield County, Ohio and was on bond in both counties. (Sent. T. at 27, 32, 63). Misty

had a civil protection order through Pickaway County, Ohio and an anti-stalking

protection order through Fairfield County, Ohio. (Sent. T. at 5). As part of his bond,

Appellant had a GPS monitor and SCRAM bracelet installed, along with a no-contact

order with Misty. (Sent. T. at 6, 33, 63).

{¶7} On October 1, 2011, Appellant was arrested for Menacing by Stalking and

Telephone Harassment charges and was allowed one phone call. The arresting officer

interrupted that phone call when he heard Appellant ask, "Why did you have me

arrested?" Appellant told the officer that he would run his face across concrete, smash

in his own face, and report that Misty did it to him.

{¶8} During the evening of January 6, 2012, Appellant took his friend to 815

Schory Avenue, Lancaster, Fairfield County, Ohio, where he had followed his estranged

wife and her friends. (Sent. T. at 34, 59). The friend talked Appellant out of harming

Misty at that time, and his friend went home. (Sent. T. at 34). Appellant did not go home

but instead, left the area, obtained a gun, and returned. (Sent. T. at 34, 36). Before

returning to the house at 815 Schory Avenue, Appellant removed his GPS ankle monitor

by breaking the cuff. The GPS ankle monitor registered the strap tamper at 3:44 a.m. on

January 7, 2012 at 201-209 South Mount Pleasant Avenue; and shortly thereafter, it

registered as stationary on South Maple Street. Law Enforcement later recovered the

broken GPS device in the area of 758-770 South Maple Street, Lancaster, Fairfield

County, Ohio. Fairfield County, Case No. 13 CA 18 4

{¶9} That night, Appellant was wearing all black clothing and a black hood.

(Sent. T. at 34). Upon returning to 815 Schory Avenue, Appellant peeked into the

windows of the house and decided that Misty was with another man. (Sent. T. at 36). At

some point that night, Appellant entered Misty's vehicle, a Chrysler Pacifica, which was

parked in the driveway at 815 Schory Avenue. (Sent. T. at 20, 34). Appellant had a

loaded .32 caliber semiautomatic handgun, as he laid in wait in the backseat of her

vehicle behind the driver's seat. (Sent. T. at 6, 34).

{¶10} When Misty entered her vehicle around 5:00 a.m. on January 7, 2012,

Appellant attempted to shoot her but missed. (BOP at 1, 5, 6, 7; State's Sentencing at 6,

Tr. 6). Misty ran away from the vehicle, and Appellant began to go after her while firing

his gun at her. (BOP at 1; State's Sentencing at 6). At least one of these shots went

through the siding and lodged in the insulation of the house at 815 Schory Avenue, a

single family dwelling, while the owner was inside the residence. (Sent. T. at 29, 68).

{¶11} Before chasing Misty down the street, Appellant shot at his third victim,

Kevin IIles, and the bullet entered Kevin in the back and exited out the front of his

stomach. (BOP at 3-4; State's Sentencing at 3-4). This took place in the driveway

between 815 and 817 Schory Avenue, Lancaster, Fairfield County, Ohio. (BOP at 4).

Kevin had emergency surgery to repair the damage caused by that bullet. (BOP at 4;

Sent. T. at 23).

{¶12} While Kevin was lying on the ground on his stomach, Appellant stood over

Kevin holding the handgun approximately one to two feet from Kevin's head and fired

his gun again. (BOP at 2). This shot grazed Kevin's head and ear. (BOP at 2). This

occurred in front of 815 Schory Avenue, Lancaster, Fairfield County, Ohio. Id. Fairfield County, Case No. 13 CA 18 5

{¶13} Kevin ran through the yards and was scaling a retaining wall between the

backyard of 815 Schory Avenue and the yard at 641 Frederick Street, Lancaster, Ohio.

(BOP at 4). Appellant fired again at Kevin, hitting him in the right thigh above his knee.

Id. Kevin fell off the wall and landed on his face, causing bruising and cuts to his face.

Id. The bullet was lodged in his leg and emergency surgery was required to remove the

bullet. Id. Kevin continues to suffer from nerve damage in his left leg, which causes

tingling in his lower leg, total numbness in his toes and foot, and he walks with a limp.

(Sent. T. at 23). In all, Appellant shot Kevin three times. (Sent. T. at 23, 38).

{¶14} Appellant next chased Misty down the street, firing multiple times in her

direction. (BOP at 1, 3, 7; State's Sentencing at 6). Appellant eventually caught up to

Misty outside of 660 E. Fair Avenue, Lancaster, Fairfield County, Ohio. (BOP at 1, 3).

Appellant grabbed Misty's arm, looked her in the eye and said, "You shouldn't have

cheated on me, bitch." (BOP at 7; Sent. T. at 7). Misty begged for her life as Appellant

put the gun to her face and pulled the trigger. (BOP at 1, 3, 7; State's Sentencing at 3;

Sent. T. at 7, 9, 21, 38). This gunshot caused extensive injuries to Misty’s face and jaw.

(Sent. T. at 7-8, 12-13, 21). She lost 60 percent of her jaw. (Sent. T. at 7, 12). At the

time of sentencing, on December 27, 2012, Misty had undergone 19 surgeries, one

approximately every 18 days. (Sent. T. at 8, 13, 21). Doctors expect that she will require

surgeries every five years for the rest of her life. (Sent. T. at 39).

{¶15} After leaving Misty to die at approximately 5:40 a.m., Appellant fled the

scene. (BOP at 8; Sent. T. at 35). He was at large until being arrested in Pickaway

County, Ohio at 7:05 p.m. on January 7, 2013. (BOP at 8; Sent. T. at 18). To date,

Appellant's handgun has never been recovered. (BOP at 8; Sent. T. at 35). Fairfield County, Case No. 13 CA 18 6

{¶16} Once arrested, Appellant began writing letters to Misty and her family, as

well as Kevin and his family. (Sent. T. at 15-16, 21, 24, 29-32, 37, 56). As Misty began

divorce proceedings, Appellant began writing letters to the Domestic Relations Judge.

(Sent. T. at 30-32). In all of these letters, Appellant included threats directed at the

letters' recipients and at Misty. (Sent. T. at 29-32). In one letter, he threatened to turn

Misty into the IRS for not paying taxes; and shortly thereafter, Misty received notice that

the IRS was auditing her. (Sent. T. at 31). In one of his letters to the Domestic Relations

Judge, Appellant stated, "It is women like Misty that cause Domestic Violence with their

immoral behavior and lack of values." (Sent. T. at 32). These letters continued even

after the court intervened and restricted Appellant's mail privileges. (Sent. T. at 29).

{¶17} On January 13, 2012, Appellant was indicted by the Fairfield County

Grand Jury with two counts of attempted Murder, felonies of the first degree in violation

of R.C. §2903.02; four counts of Felonious Assault, Felonies of the second degree in

violation of R.C. §2903.11; One count each of Improperly Discharging a Firearm at or

into a Habitation (R.C. § 2923.161, F 2); Violation of a Protection Order (R.C. 2919.27.

F3); Menacing by Stalking, (R.C. 2903.211 F4); two Counts of Tampering with

Evidence, Felonies of the third degree in violation of R.C. § 2921.12; and one count of

Domestic Violence, a Misdemeanor of the first degree in violation of §2919.25. Each of

the first counts contained a firearm specification pursuant to R. C. §2941.145.

{¶18} After a finding of competent to stand trial on December 27, 2012,

Defendant withdrew his previously entered Not Guilty (and Not Guilty by Reason of

Insanity) plea and pursuant to a negotiated Plea agreement entered guilty pleas to

Count 3 (Felonious Assault) with the specification, Count 5 (Felonious Assault) with the Fairfield County, Case No. 13 CA 18 7

specification and counts 7 (Improper Discharge), 8 (Violation Protection Order), 9

(Menacing by Stalking), 10 and 11 (Tampering with Evidence). The court then

scheduled Sentencing for a later date.

{¶19} On January 25, 2013, the Court held a sentencing hearing wherein the

court heard Victim Impact statements, statements in mitigation and arguments from

Counsel. After determining that none of the counts were allied offenses and therefore

did not merge, the trial court sentenced Appellant to eight years in prison on Count

Three; three years in prison on the firearm specification to Count Three; eight years in

prison on Count Five; three years in prison on the firearm specification to Count Five;

three years in prison on Count Seven; 36 months in prison on Count Eight; 12 months in

prison on Count Nine; 24 months in prison on Count Ten; and 24 months in prison on

Count Eleven. Judgment Entry of Sentence, Fairfield C.P. No. 2013-CR-19, January 28,

2013.

{¶20} The court ordered all sentences to be served consecutively to each other

and any other sentences, for a total of 33 years in prison. Id

{¶21} Appellant now appeals, setting forth the following Assignment of Error:

ASSIGNMENT OF ERROR

{¶22} “I. THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT

OF DUE PROCESS OF LAW IN NOT MERGING COUNT THREE WITH COUNTS

SEVEN, EIGHT AND NINE AS THOSE OFFENSES ARE ALLIED OFFENSES AND

OCCURRED AS ONE COURSE OF CONDUCT AND ACTION.” Fairfield County, Case No. 13 CA 18 8

I.

{¶23} In his sole Assignment of Error, Appellant argues that the trial court erred

in sentencing him consecutively on Counts 3, 7, 8 and 9. He also argues that the

offenses were a part of one course of conduct and therefore are allied offenses of

similar import.

{¶24} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, Cuyahoga App.No. 98428, 2013–

Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a trial

court to make specific findings when imposing consecutive sentences. Nonetheless,

“[a]lthough H.B. 86 requires the trial court to make findings before imposing a

consecutive sentence, it does not require the trial court to give its reasons for imposing

the sentence.” State v. Bentley, Marion App.No. 9–12–31, 2013–Ohio–852, ¶ 12, citing

State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 57. Likewise,

“under H.B. 86, a trial court is not required to articulate and justify its findings at the

sentencing hearing when it imposes consecutive sentences as it had to do under S.B.

2.” State v. Redd, Cuyahoga App.No. 98064, 2012–Ohio–5417, ¶ 12. But the record

must clearly demonstrate that consecutive sentences are not only appropriate, but are

clearly supported by the record. See State v. Bonnell, Delaware App.No. 12CAA3022,

2012–Ohio–5150.

{¶25} Revised Code §2929.14(C)(4) provides, in relevant part: Fairfield County, Case No. 13 CA 18 9

{¶26} “(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

{¶27} “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶28} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶29} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

{¶30} In its sentencing entry, the court found that consecutive sentencing is

necessary to punish Appellant and protect the public, consecutive sentencing is not

disproportionate to the purposes and principles of felony sentencing, and that the harm

caused was so great or unusual that no single prison term adequately reflects the

seriousness of Appellant’s conduct. (Judgment Entry of Sentence, January 28, 2013, at Fairfield County, Case No. 13 CA 18 10

8). The trial court found that “the crimes were planned, premeditated, and deliberate.”

The court further found the crimes “were very serious and caused serious physical pain

and suffering, and psychological harm, initially, months after, now and in the future.” Id.

at 6. The court also found Appellant’s actions were “motivated out of rage, anger and

jealousy and were unprovoked.”

{¶31} While Appellant claims the crimes charged in Counts 3, 7, 8 and 9 were a

part of the same course of conduct, the offenses are not allied offenses of similar

import.

{¶32} R.C. 2941.25 reads as follows:

{¶33} “(A) Where the same conduct by 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.

{¶34} “(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.”

{¶35} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d

1061, the Ohio Supreme Court held: “When determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.” Id., at the syllabus. Fairfield County, Case No. 13 CA 18 11

{¶36} Appellant's reliance on Johnson is misplaced. While each of the crimes

were committed close in time to one another, each offense committed by Appellant was

a separate act.

{¶37} Count 7 – Improperly Discharging Firearm into Habitation

{¶38} This offense was committed when Appellant fired his gun and shot a bullet

into the residence at 815 Schory Avenue while someone was in the home. (T. at 68).

The victim named in this count is the homeowner, S.D. This act was separate and

distinct from the other charges.

{¶39} Count 8 – Violation of Protective Order

{¶40} This Count stemmed from the protection orders which prohibited Appellant

from having any contact with Misty or from coming within 1,000 feet of her. Appellant

violated these orders when he began following her on the evening of January 6, 2012.

He peeked in the windows of the home at 815 Schory Avenue. He concealed himself in

the backseat of her vehicle and ambushed her when she opened the door to her vehicle

on the morning of January 7, 2012. This act was completed before any shots were

fired. Appellant’s actions support a separate act and animus for this count.

{¶41} Count 9 – Menacing by Stalking

{¶42} This Count requires a “pattern of conduct”. Such conduct began in August,

2011, starting with hundreds of texts messages, continued with many other acts which

included standing on the roadside with an “I Love You” sign, and also included

statements made by Appellant to a number of people that he would kill Misty. These

acts began before the events which transpired on January 7, 2012. Appellant’s actions

support a separate act and animus for this count. Fairfield County, Case No. 13 CA 18 12

{¶43} Count 3 – Felonious Assault

{¶44} Appellant’s actions in committing this crime were done with a separate

animus than the above listed counts. Appellant caused serious physical harm to Misty

when he pressed the gun against her face and pulled the trigger. This occurred after

Appellant committed the acts contained in Counts 7, 8 and 9. This act took place after

Appellant shot Kevin Illes 3 times. Appellant’s actions support a separate act and

animus for this count.

{¶45} The fact that the above acts were committed close in time and space does

not require merger of the charges.

{¶46} Appellant's sole Assignment of Error is overruled.

{¶47} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 0409 Fairfield County, Case No. 13 CA 18 13