State v. Frazier

2021 Ohio 4155

Opinion

[Cite as State v. Frazier, 2021-Ohio-4155.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-46 : v. : Trial Court Case No. 2008-CR-804 : RAYMOND E. FRAZIER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 24th day of November, 2021.

IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

RAYMOND E. FRAZIER, #A595-071, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant, Pro Se

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EPLEY, J. -2-

{¶ 1} Raymond E. Frazier appeals from the trial court’s denial of his “application”

to “vacate and set aside [his] convictions and sentence.” For the following reasons, the

trial court’s judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} Following a jury trial, Frazier was convicted of one count of having weapons

while under disability, a felony of the third degree, and two counts of felonious assault,

felonies of the second degree, with accompanying firearm specifications. The charges

stemmed from an incident on September 9, 2008, during which Frazier fired shots at a

vehicle occupied by his sister, Jasmine Frazier, and her boyfriend, James Swain. Bullets

struck the vehicle, but neither Swain nor Frazier’s sister sustained injuries from the

shooting. Swain, who had a gun in the vehicle, returned fire.

{¶ 3} At sentencing, the trial court merged the firearm specifications and imposed

a mandatory term of three years in prison on the firearm specification, to be served prior

to and consecutively to eight years in prison on each felonious assault count and five

years in prison for having weapons while under disability. Frazier’s aggregate sentence

was 24 years in prison.

{¶ 4} Frazier filed a direct appeal following his convictions, claiming that the trial

court erred by permitting the State to amend the indictment on the first day of trial, by

allowing the State to exercise a preemptory challenge to remove the only African

American juror, by giving certain jury instructions, and by providing a partial trial transcript

to the jury during deliberations. We overruled each assignment of error and affirmed

Frazier’s convictions. State v. Frazier, 2d Dist. Clark No. 2008-CA-118, 2010-Ohio-1507. -3-

{¶ 5} Frazier also sought post-conviction relief. In April 2009, he filed a motion to

vacate or set aside a void judgment, claiming that the trial court lacked jurisdiction.

Frazier argued that his indictment was defective and thus was ineffective to invoke the

trial court’s jurisdiction, because it failed to include the required mens rea. The same

month, the trial court summarily overruled Frazier’s motion. Frazier appealed the trial

court’s judgment, but we dismissed the appeal for lack of prosecution. State v. Frazier,

2d Dist. Clark No. 2009-CA-50 (Decision & Final Judgment Entry, Aug. 10, 2009).

{¶ 6} In January 2016, Frazier filed a “motion to correct illegal sentence.” He

asserted that, assuming he was the shooter, “he should have never been convicted and

sentenced for two counts of the same charge when there was only one intended victim,”

Swain. Frazier argued that State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, had announced a new decisional approach to allied offenses of similar

import and, in the interest of justice, res judicata should not be applied to bar an allied-

offense analysis. In March 2016, the trial court found the motion “not well taken” and

overruled it. Frazier did not appeal the trial court’s ruling.

{¶ 7} Three years later, in July 2019, Frazier filed an “emergency motion to vacate

void conviction and sentence.” He asserted that he was improperly found guilty and

sentenced for felonious assault because the trial court never filed a written entry granting

the State’s motion to amend the indictment.

{¶ 8} In September 2019, the trial court denied the motion. While acknowledging

that no written entry was filed, the court emphasized that the indictment was amended to

remove a superfluous word, not to add elements or language. (The indictment alleged

that Frazier had caused or attempted to cause “serious physical harm” when only -4-

“physical harm” was required by R.C. 2903.11(A)(2).) As the trial court stated, “In other

words, the word that was deleted was unnecessary to properly state the offenses on

which he was indicted and of which he was convicted.” Frazier, again, did not appeal

the trial court’s judgment.

{¶ 9} The motion at issue in this appeal – an “application” to “vacate and set aside

[his] convictions and sentence” based on fraud upon the court and ineffective assistance

of counsel – was filed on May 25, 2021. In this motion, Frazier raised two general

arguments. First, he claimed that his two felonious assault offenses should have been

merged as allied offenses of similar import. He asserted that the appropriate test was

“whether the defendant had a common purpose in committing multiple crimes, and

engaged in a single criminal adventure.”

{¶ 10} Frazier further claimed in his motion that his trial counsel rendered

ineffective assistance. He argued that counsel (1) should have conducted a proper

pretrial investigation and discredited the testimony of Swain and his sister, (2) should

have advocated for concurrent and shorter sentences, and (3) allowed false statements

to be made about him, which contributed to the guilty verdicts and sentences. Frazier

alleged that his counsel’s actions amounted to a fraud on the court and a conspiracy

between defense counsel and the prosecutor to deprive him of his “civil and constitutional

rights.”

{¶ 11} The State opposed Frazier’s motion, claiming that his arguments were

barred by res judicata. On June 30, 2021, the trial court overruled Frazier’s motion,

adopting the reasoning of the State’s opposition memorandum. Frazier appeals from the

trial court’s judgment. -5-

II. Merits of Frazier’s Motion to Vacate or Set Aside his Convictions

{¶ 12} On appeal, Frazier focuses on his claim that his offenses should have been

merged as allied offenses of similar import. He asserts that his trial counsel’s failure to

raise allied offenses amounted to ineffective assistance and that the trial court’s failure to

merge the offenses represented an “abuse of authority” and an “injustice.”

{¶ 13} In its responsive brief, the State asserts that the trial court properly

sentenced Frazier separately for the two felonious assault charges, because the charges

involved separate victims. It further states that having weapons while under disability

does not merge with felonious assault, because they have dissimilar import. Frazier also

raised R.C. 2929.14(B)(1)(b), which concerns merger of firearm specifications, but the

State noted that the firearm specifications were merged at sentencing.

{¶ 14} At the outset, we agree with the trial court’s conclusion that Frazier’s

arguments are barred by the doctrine of res judicata. “Pursuant to the doctrine of res

judicata, a valid final judgment on the merits bars all subsequent actions based on any

claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9,

citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). Res judicata

precludes any issue that was raised or could have been raised in a criminal defendant’s

prior appeal from his conviction or any other final appealable order. State v. Miller, 2d

Dist. Montgomery No. 28545, 2021-Ohio-232, ¶ 21, citing State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967).

{¶ 15} We have consistently held that a defendant must raise the merger of allied

offenses of similar import on direct appeal or it is barred by res judicata. See, e.g., State -6-

v. Taylor, 2d Dist. Montgomery No. 28166, 2019-Ohio-1376, ¶ 21-22 (defendant barred

by res judicata from raising allied offense argument in post-conviction motion when he

failed to raise allied offenses on direct appeal); State v. Perkins, 2d Dist. Montgomery No.

26788, 2016-Ohio-4581, ¶ 7.

{¶ 16} In this case, Frazier could have challenged his sentence, including the

failure to merge allied offenses, on direct appeal, but he did not. Nor did Frazier argue

on direct appeal that his trial counsel acted deficiently by failing to argue allied offenses.

In 2016, Frazier’s motion to correct illegal sentence argued that his felonious assault

offenses should have merged as allied offenses. However, Frazier did not appeal the

trial court’s judgment denying that motion. Frazier’s renewed claims that his offenses

should have merged as allied offenses and that his attorney rendered ineffective

assistance by failing to raise merger at sentencing are barred by res judicata.

{¶ 17} Even if his claims were not barred by res judicata, we agree with the State

that the trial court properly imposed separate sentences for the two felonious assault

charges and having weapons while under disability.

{¶ 18} Contrary to Frazier’s assertion, our allied-offense analysis is governed by

the allied-offense statute, R.C. 2941.25, and Ohio Supreme Court jurisprudence. R.C.

2941.25 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 -7-

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.

This statute implements the protections of the Double Jeopardy Clauses of the United

States and Ohio Constitutions, which prohibit a second punishment for the same offense.

State v. Fritz, 182 Ohio App.3d 299, 2009-Ohio-2175, 912 N.E.2d 650, ¶ 9 (2d Dist.).

{¶ 19} “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. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12 (quoting Ruff); State v. Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728,

¶ 29. Offenses are of dissimilar import within the meaning of the allied-offense statute

“when the defendant’s conduct constitutes offenses involving separate victims or if the

harm that results from each offense is separate and identifiable.” Ruff at ¶ 23.

{¶ 20} The defendant bears the burden of establishing that offenses should be

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. State v. Barnes, 2d

Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 10. -8-

{¶ 21} Here, the felonious assault offenses were identically charged in the

indictment, but the bill of particulars and evidence at trial made clear that the charges

involved separate victims: Frazier’s sister (Jasmine) and Swain. Because each charge

concerned a different individual, the two felonious assault charges were of dissimilar

import, and the trial court properly imposed a sentence on each count.

{¶ 22} The factual circumstances also do not support the merger of having

weapons while under disability with the felonious assault charges. We and other

appellate districts have held that having weapons while under disability and felonious

assault generally do not merge, because the charges do not involve the same animus.

See State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857. As stated by

the Fifth District, “the animus of having weapons under disability is making a conscious

choice to possess a weapon. Felonious assault requires a conscious choice to attack

someone using a weapon.” State v. Elder, 5th Dist. Richland No. 2011-CA-0058, 2011-

Ohio-4438, ¶ 7.

{¶ 23} In State v. Fairman, 2d Dist. Montgomery No. 24299, 2011-Ohio-6489, we

held that the circumstances presented a limited exception to the general rule. In that

case, Fairman encountered Tremayne Arnold and accused Arnold of murdering his

(Fairman’s) nephew. Fairman asked his companion, Davares Pruitt, for a gun. Pruitt

initially refused, but Arnold saw Pruitt hand a gun to Fairman. Fairman then immediately

shot Arnold in the chest. Arnold survived the shooting, and Fairman was convicted of

felonious assault with a firearm specification and having weapons while under disability.

Under these unique circumstances, we held that the two offenses “were not committed

separately or with a separate animus because the evidence shows that Fairman obtained -9-

the gun with the immediate intent of shooting Arnold; he had no separate animus in

acquiring possession of the gun.” Fairman at ¶ 67.

{¶ 24} Frazier has not established that the facts in his case are similar to those in

Fairman. The State’s evidence at trial established that Frazier was standing beside his

truck in a parking lot outside of his sister’s place of employment when he fired a gun at

his sister and Swain at approximately 11:15 p.m., when Jasmine was leaving work.

Swain and Jasmine each testified that Frazier had threatened to kill them in the days

before the shooting. There is nothing in the record demonstrating that Frazier obtained

a gun immediately prior to the shooting for the purpose of shooting at Swain and his sister.

Rather, as in Grissom, the record supports a conclusion that Frazier’s decision to obtain

a gun was separate and distinct from his decision to shoot at the car in which Swain and

his sister were seated.

{¶ 25} We therefore conclude that the trial court properly did not merge the

felonious assault and having weapons while under disability offenses as allied offenses.

Because Frazier’s offenses were not subject to merger, trial counsel did not act deficiently

in failing to request merger. In addition, because the trial court merged his firearm

specifications, any claim that his firearm specifications should have merged lacks merit.

{¶ 26} Frazier’s assignment of error is overruled.

III. Conclusion

{¶ 27} The trial court’s judgment will be affirmed.

DONOVAN, J. and WELBAUM, J., concur. -10-

Copies sent to:

Ian A. Richardson Raymond E. Frazier Hon. Douglas M. Rastatter