[Cite as State v. Hazley, 2016-Ohio-7689.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27107 : v. : T.C. NO. 15CR2640 : CAMILLE HAZLEY : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the ____10th __ day of _____November_____, 2016.
HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794 and ADAM J. ARNOLD, Atty. Reg. No. 0088791, 1502 Liberty Tower, 120 W. Second Street, Suite 1502, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant Camille Hazley appeals from her conviction and
sentence for one count of aggravated burglary (physical harm), in violation of R.C.
2911.11(A)(1), a felony of the first degree; and one count of felonious assault (serious
harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree. Hazley filed a -2-
timely notice of appeal with this Court on May 10, 2016.
{¶ 2} The incident which forms the basis for the instant appeal occurred on the
night of August 22, 2015, when the victim, Robert Ryan, was at his residence located at
1138 West Second Street. Late that evening, Hazley, who was living in the apartment
next door, knocked on Ryan’s door and asked to come inside. Ryan testified that he was
acquainted with Hazley as he knew her to be living with his next door neighbor Elizabeth
Warren. Moreover, Ryan testified that Hazley and her three-year old son had visited him
at his apartment on two prior occasions.
{¶ 3} On the night of the incident, however, Ryan testified that Hazley came over
alone and was acting “strange.” When Hazley began asking him for money, Ryan
testified that he told her to leave his apartment, but she ignored him. At that point, Ryan
testified that Hazley began hitting him on his arms and head, while continuing to demand
that he give her some money. Ryan continued to refuse to give her any money. Hazley
then grabbed Ryan’s left forearm and twisted it approximately three to four times, resulting
in a six to seven inch tear in the skin on Ryan’s arm. Once Ryan began bleeding
profusely, Hazley attempted to soak up the blood with some tissues. Hazley then left
Ryan’s apartment.
{¶ 4} After Hazley left, Ryan called the police and requested a paramedic.
Thereafter, Ryan was taken by ambulance to Grandview Hospital where he received
treatment for his injuries. In addition to the severe injury to his arm, Ryan suffered
bruising to his face where Hazley struck him. Ryan later identified Hazley in a blindly
administered photo spread prepared by officers from the Dayton Police Department.
{¶ 5} On August 28, 2015, Hazley was indicted for one count of felonious assault -3-
and one count of aggravated burglary. At her arraignment on September 1, 2015,
Hazley stood mute, and the trial court entered a plea of not guilty on her behalf.
Thereafter, on September 10, 2015, Hazley filed a motion for a mental competency
evaluation and a not guilty by reason of insanity evaluation. After a competency
evaluation was completed, the trial court issued an order finding Hazley competent to
stand trial on October 8, 2015.
{¶ 6} On October 19, 2015, Hazley filed a motion to suppress evidence from the
photo-spread identification administered to Ryan by the police. A hearing was held on
said motion on February 5, 2016, after which the trial court denied Hazley’s motion to
suppress in a decision and entry issued on March 8, 2016.
{¶ 7} Hazley’s jury trial began on April 12, 2016, and ended the next day, April 13,
2016. Hazley was ultimately found guilty of both counts in the indictment, and the trial
court referred the matter for a presentence investigation report (“PSI”). The trial court
scheduled Hazley’s disposition for April 29, 2016. On April 25, 2016, Hazley filed a
motion to merge her offenses for the purposes of sentencing. The State filed its
memorandum in opposition to Hazley’s motion for merger on April 28, 2016.
{¶ 8} At the sentencing hearing on April 29, 2016, the trial court denied Hazley’s
motion for merger and sentenced her to three years in prison for aggravated burglary and
two years in prison for felonious assault. The trial court ordered the sentences to be
served concurrently for an aggregate sentence of three years imprisonment.
{¶ 9} It is from this judgment that Hazley now appeals.
{¶ 10} Hazley’s sole assignment of error is as follows:
{¶ 11} “THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S -4-
CONVICTIONS OF FELONIOUS ASSAULT AND AGGRAVATED BURGLARY AS
ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶ 12} In her sole assignment, Hazley argues that the trial court erred when it found
that her convictions for felonious assault and aggravated burglary were not allied offenses
and therefore, refused to merge the offenses for the purposes of sentencing.
Specifically, Hazley asserts that the two offenses were of similar import, occurred
contemporaneously, and were committed with the same animus.
{¶ 13} R.C. 2941.25, Ohio's allied offense statute, provides that:
(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.
(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.
{¶ 14} The Ohio Supreme Court recently clarified the applicable standard when
determining whether offenses merge as allied offenses of similar import. State v.
Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892.
Rather than compare the elements of two offenses to determine whether
they are allied offenses of similar import, the analysis must focus on the
defendant's conduct to determine whether one or more convictions may -5-
result, because an offense may be committed in a variety of ways and the
offenses committed may have different import. No bright-line rule can
govern every situation.
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.
Ruff at ¶ 30–31.
{¶ 15} Most recently in State v. Wood, 2d Dist. Montgomery No. 26134, 2016–
Ohio–143, we stated the following:
[T]he Ohio Supreme Court addressed the allied-offense issue again in State
v. Earley, [145 Ohio St.3d 281], 2015–Ohio–4615, [49 N.E.3d 266]. There
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[Cite as State v. Hazley, 2016-Ohio-7689.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27107 : v. : T.C. NO. 15CR2640 : CAMILLE HAZLEY : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the ____10th __ day of _____November_____, 2016.
HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794 and ADAM J. ARNOLD, Atty. Reg. No. 0088791, 1502 Liberty Tower, 120 W. Second Street, Suite 1502, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant Camille Hazley appeals from her conviction and
sentence for one count of aggravated burglary (physical harm), in violation of R.C.
2911.11(A)(1), a felony of the first degree; and one count of felonious assault (serious
harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree. Hazley filed a -2-
timely notice of appeal with this Court on May 10, 2016.
{¶ 2} The incident which forms the basis for the instant appeal occurred on the
night of August 22, 2015, when the victim, Robert Ryan, was at his residence located at
1138 West Second Street. Late that evening, Hazley, who was living in the apartment
next door, knocked on Ryan’s door and asked to come inside. Ryan testified that he was
acquainted with Hazley as he knew her to be living with his next door neighbor Elizabeth
Warren. Moreover, Ryan testified that Hazley and her three-year old son had visited him
at his apartment on two prior occasions.
{¶ 3} On the night of the incident, however, Ryan testified that Hazley came over
alone and was acting “strange.” When Hazley began asking him for money, Ryan
testified that he told her to leave his apartment, but she ignored him. At that point, Ryan
testified that Hazley began hitting him on his arms and head, while continuing to demand
that he give her some money. Ryan continued to refuse to give her any money. Hazley
then grabbed Ryan’s left forearm and twisted it approximately three to four times, resulting
in a six to seven inch tear in the skin on Ryan’s arm. Once Ryan began bleeding
profusely, Hazley attempted to soak up the blood with some tissues. Hazley then left
Ryan’s apartment.
{¶ 4} After Hazley left, Ryan called the police and requested a paramedic.
Thereafter, Ryan was taken by ambulance to Grandview Hospital where he received
treatment for his injuries. In addition to the severe injury to his arm, Ryan suffered
bruising to his face where Hazley struck him. Ryan later identified Hazley in a blindly
administered photo spread prepared by officers from the Dayton Police Department.
{¶ 5} On August 28, 2015, Hazley was indicted for one count of felonious assault -3-
and one count of aggravated burglary. At her arraignment on September 1, 2015,
Hazley stood mute, and the trial court entered a plea of not guilty on her behalf.
Thereafter, on September 10, 2015, Hazley filed a motion for a mental competency
evaluation and a not guilty by reason of insanity evaluation. After a competency
evaluation was completed, the trial court issued an order finding Hazley competent to
stand trial on October 8, 2015.
{¶ 6} On October 19, 2015, Hazley filed a motion to suppress evidence from the
photo-spread identification administered to Ryan by the police. A hearing was held on
said motion on February 5, 2016, after which the trial court denied Hazley’s motion to
suppress in a decision and entry issued on March 8, 2016.
{¶ 7} Hazley’s jury trial began on April 12, 2016, and ended the next day, April 13,
2016. Hazley was ultimately found guilty of both counts in the indictment, and the trial
court referred the matter for a presentence investigation report (“PSI”). The trial court
scheduled Hazley’s disposition for April 29, 2016. On April 25, 2016, Hazley filed a
motion to merge her offenses for the purposes of sentencing. The State filed its
memorandum in opposition to Hazley’s motion for merger on April 28, 2016.
{¶ 8} At the sentencing hearing on April 29, 2016, the trial court denied Hazley’s
motion for merger and sentenced her to three years in prison for aggravated burglary and
two years in prison for felonious assault. The trial court ordered the sentences to be
served concurrently for an aggregate sentence of three years imprisonment.
{¶ 9} It is from this judgment that Hazley now appeals.
{¶ 10} Hazley’s sole assignment of error is as follows:
{¶ 11} “THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S -4-
CONVICTIONS OF FELONIOUS ASSAULT AND AGGRAVATED BURGLARY AS
ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶ 12} In her sole assignment, Hazley argues that the trial court erred when it found
that her convictions for felonious assault and aggravated burglary were not allied offenses
and therefore, refused to merge the offenses for the purposes of sentencing.
Specifically, Hazley asserts that the two offenses were of similar import, occurred
contemporaneously, and were committed with the same animus.
{¶ 13} R.C. 2941.25, Ohio's allied offense statute, provides that:
(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.
(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.
{¶ 14} The Ohio Supreme Court recently clarified the applicable standard when
determining whether offenses merge as allied offenses of similar import. State v.
Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892.
Rather than compare the elements of two offenses to determine whether
they are allied offenses of similar import, the analysis must focus on the
defendant's conduct to determine whether one or more convictions may -5-
result, because an offense may be committed in a variety of ways and the
offenses committed may have different import. No bright-line rule can
govern every situation.
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.
Ruff at ¶ 30–31.
{¶ 15} Most recently in State v. Wood, 2d Dist. Montgomery No. 26134, 2016–
Ohio–143, we stated the following:
[T]he Ohio Supreme Court addressed the allied-offense issue again in State
v. Earley, [145 Ohio St.3d 281], 2015–Ohio–4615, [49 N.E.3d 266]. There
the majority characterized the analysis in its earlier Johnson lead opinion as
“largely obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff,
which, as noted above, considers a defendant's conduct, his animus, and
the import or significance of his offenses. Applying Ruff, the Earley court
concluded that misdemeanor OVI and felony aggravated vehicular assault
“are offenses of dissimilar import and significance that are to be punished
cumulatively.” Earley at ¶ 20. For purposes of our analysis here, we note -6-
that a defendant bears the burden of establishing entitlement to merger, and
we review a trial court's ruling on the issue de novo. State v. LeGrant, 2d
Dist. Miami No. 2013–CA–44, 2014–Ohio–5803, ¶ 15.
***
We reach the same conclusion under the Ruff standard, which the Ohio
Supreme Court applied in Earley. We see nothing in Ruff that alters or
undermines the foregoing analysis about McGail's commission of murder
and aggravated robbery involving the same conduct committed with the
same animus. For the reasons set forth above, we conclude that the two
offenses were not committed separately and were not committed with a
separate animus or motivation. These findings remain pertinent
under Ruff, which, as noted above, provides that offenses do not merge if
“(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.” Ruff at ¶ 25; see also id. at ¶ 30–31.
Wood, at ¶ 54, quoting State v. McGail, 2015–Ohio–5384, 55 N.E.3d 513, ¶ 51 & 60 (2d
Dist.).
{¶ 16} An appellate court applies a de novo standard of review in reviewing a trial
court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012–
Ohio–5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of establishing his
entitlement to the protection provided by R.C. 2941.25 against multiple punishments for
a single criminal act.” Id. -7-
{¶ 17} Hazley was convicted of aggravated burglary in violation of R.C.
2911.11(A)(1), which provides in pertinent part:
(A) No person, by force, stealth, or deception, shall trespass in an occupied
structure * * * when another person other than an accomplice of the offender
is present, with purpose to commit in the structure * * * any
criminal offense if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another.
{¶ 18} Hazley was also convicted of felonious assault, in violation of R.C.
2903.11(A)(1) which provides, “[n]o person shall knowingly * * * [c]ause serious physical
harm to another or to another's unborn.”
{¶ 19} Hazley's aggravated burglary and felonious assault convictions are not
allied offenses of similar import because the offenses were committed separately and
with a separate animus. Initially, we note that the second count (aggravated burglary) in
Hazley’s indictment states in pertinent part:
CAMILLE HAZLEY *** by force, stealth or deception, did trespass in an
occupied structure, to wit: RESIDENCE located at 1138 W. SECOND
STREET, DAYTON, OHIO *** when another person *** was present, with
purpose to commit in the structure *** any criminal offense, to wit: ASSAULT
and/or THEFT, and did inflict, or attempt or threaten to inflict physical harm
on another, to wit: ROBERT RYAN ***.
{¶ 20} In denying Hazley’s motion for merger of her aggravated burglary and
felonious assault convictions, the trial court stated as follows: -8-
The Court: *** In addition, I am also going to find that I have reviewed
not only State v. Barker, but State v. [Ruff] and being guided by those, I am
going to find that the two offenses were dissimilar in import or significance.
And that is under the analysis in [Ruff]. Particularly as [the State]
pointed out, the felonious assault resulted from the serious nature of the
injuries to the victim’s arm. The aggravated burglary only require[d] any
physical harm. The victim testified that the photographs revealed also [sic]
bruising. He testified that he was punched and other physical violence
exerted on him before his arm was injured.
So I am going to find that the offenses were not committed with -- I’m
sorry, were dissimilar in import and significance, particularly the nature of
the injury required. And the Court will find that the sentence for the counts
*** does not merge and the offenses were not allied offenses of similar
import.
{¶ 21} On the record before us, we find that the aggravated burglary was
committed when Ryan ordered Hazley to leave and she tacitly refused and remained in
his apartment in an effort to force him to give her money, or in other words, commit a
theft. Simply put, once Hazley was found to be trespassing in Ryan’s residence, her
purpose was to commit a theft by inflicting physical harm upon him by striking him about
his head and upper body. Essentially, the aggravated burglary was completed by an
attempt to forcibly obtain money before Hazley committed the felonious assault offense
against Ryan by grabbing his left forearm and tearing his skin apart. Contrary to Hazley’s
argument, felonious assault was not an element of aggravated burglary as charged in the -9-
indictment. Accordingly, utilizing the Ruff analysis in the present case, we find that the
aggravated burglary and felonious assault were committed with a separate animus and,
thus, were not subject to merger.
{¶ 22} Hazley’s sole assignment of error is overruled.
{¶ 23} Hazley’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
..........
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Heather N. Jans Kristin L. Arnold Adam J. Arnold Hon. Barbara P. Gorman