State v. Garrison

702 N.E.2d 1222, 123 Ohio App. 3d 11
CourtOhio Court of Appeals
DecidedSeptember 19, 1997
DocketNo. 96 CA 127.
StatusPublished
Cited by23 cases

This text of 702 N.E.2d 1222 (State v. Garrison) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garrison, 702 N.E.2d 1222, 123 Ohio App. 3d 11 (Ohio Ct. App. 1997).

Opinion

*14 Wolff, Judge.

Adrian L. Garrison was found guilty by a jury in the Greene County Court of Common Pleas of two counts of robbery and two counts of abduction. He was sentenced to indefinite terms of eight to fifteen years on each of the robbery charges and indefinite terms of five to ten years on each of the abduction charges. All sentences were to be served consecutively to each other. Garrison appeals from his conviction.

The state’s evidence established the following.

In early September 1995, Curtis Miller was involved in a traffic accident while Garrison was a passenger in his car. Garrison received medical treatment at a hospital following the accident, and he subsequently received a bill in the amount of $710.70 from the hospital. Miller did not have insurance, but Garrison wanted Miller to pay the bill.

According to Miller, in the afternoon of September 22, 1995, he received a telephone call from Garrison. Garrison threatened that if Miller did not pay the bill or give Garrison “some stuff’ to cover the cost of the bill, Garrison would “kick [his] ass.” Then, in the early morning hours of September 23, Garrison, his brother, and another man went to Miller’s apartment. Miller, his roommate Eric Cannon, and their girlfriends, Audrey Blauser and Nicole Ciano, were in the apartment at the time. Cannon admitted Garrison and the others into the apartment, where they demanded “money and stuff’ in compensation for Garrison’s hospital bill. When Miller informed them that he did not have any money, the men began gathering items to take from the apartment. The men ordered Cannon to point out items which belonged to Miller. According to Cannon, the men started “taking stuff and packing stuff up and threatening to kick our ass if we tried doing anything.”

Garrison and the other men were in the apartment for approximate forty-five minutes. Cannon tried to call the police, but Garrison prevented him from doing so. At one point, Garrison pulled Miller by the shirt into the bedroom to collect additional items, pushed him up against a wall, and had his brother take Miller’s necklace off. In addition to the necklace, the men took a compact disc changer and forty-eight discs, an amplifier, speakers, a pager, underwear, a gold earring, and cologne belonging to Miller, and a cordless phone, caller I.D. box, and amplifier belonging to Cannon. Miller and Cannon testified that they had been frightened and had not felt that they could stop the men from taking their belongings from the apartment because the men were bigger than they and because they were outnumbered.

Blauser and Ciano were sitting on the couch in the living room of the apartment throughout most of the incident. At one point, the women tried to *15 leave the apartment to call the police, but Garrison and his brother blocked their way and ordered them to sit back down. Both women testified that they had been afraid they would get hurt.

After Garrison and the others took the property to their car and drove away, Cannon called the police from a neighbor’s phone.

Garrison testified in his own defense. He stated that Miller had agreed to give him the property in question in satisfaction of the hospital bill, and that Miller had even helped him unhook the stereo equipment. He denied trying to intimidate Miller or pulling him at any time. Garrison also denied that he had taken some of the items on Miller’s list of stolen property, including the CD changer and the speakers. The defense also presented the testimony of the girlfriend of Garrison’s brother, who had been driving the men around that night. She testified that they had not seemed rushed when they came out of Miller’s apartment.

Garrison was charged with two counts of robbery related to Miller and Cannon and two counts of abduction related to Blauser and Ciano. He pled not guilty and was tried by a jury on September 23 to 25, 1996. Garrison was found guilty as charged. He was sentenced as described above.'

Garrison asserts four assignments of error on appeal.

“I. The trial court committed prejudicial error by entering judgment of conviction for both abduction and robbery, which under the circumstances of this case are allied offenses of similar import.”

Garrison argues that abduction and robbery are allied offenses of similar import. Therefore, he claims, the trial court was required to merge his abduction and robbery convictions pursuant to R.C. 2941.25, which prohibits multiple convictions based upon allied offenses of similar import.

Garrison did not assert in the trial court that his robbery and abduction convictions were allied offenses of similar import. The Supreme Court has held that a defendant’s failure to object to convictions or sentencing at trial results in waiver of an allied-offense claim on appeal. State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d 640, 645-646. Thus, Garrison may not raise this issue for the first time on appeal.

Moreover, Garrison’s argument would fail even if it had been properly preserved for appeal. A defendant must show that the prosecution has relied upon the same conduct to support both offenses charged in order to obtain the protection of R.C. 2941.25(A). State v. Logan (1979), 60 Ohio St.2d 126, 128, 14 O.O.3d 373, 374, 397 N.E.2d 1345, 1347-1348. In this case, where the victims of the robberies were different from the victims of the abductions, the state clearly *16 has not relied upon the same conduct in support of the various charges. Even where a defendant commits the same offense against different victims during the same course of conduct, a separate animus exists for each victim, so that the defendant can properly be convicted of and sentenced on multiple counts. State v. Gregory (1993), 90 Ohio App.3d 124, 129, 628 N.E.2d 86, 89-90. See, also, State v. Phillips (1991), 75 Ohio App.3d 785, 789-790, 600 N.E.2d 825, 828-829.

The first assignment of error is overruled.

“II. The trial court committed prejudicial error by not requiring a presentence investigation or victim impact statement.”

Garrison claims that Crim.R. 32.2 required the trial court to order a presentence investigation because he was eligible for probation and that R.C. 2947.05 required the court to order a victim-impact statement. He contends that he may have received a lighter sentence if the trial court had ordered and considered these items. We note, however, that Garrison did not request the preparation of a presentence investigation or victim-impact statement in the trial court.

Crim.R. 32.2(A) states, “In felony cases the court shall * * * order a presentence investigation and report before granting probation.” This rule requires a presentence investigation only as a prerequisite to granting probation, and not as a prerequisite to all sentencing proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
702 N.E.2d 1222, 123 Ohio App. 3d 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garrison-ohioctapp-1997.