State v. Lee

2010 Ohio 5672, 943 N.E.2d 602, 190 Ohio App. 3d 581
Ohio Court of Appeals·Decided November 22, 2010·No. 3-10-11, 3-10-12, 3-10-13·Published·Cited by 7 cases

Opinions

Preston, Judge.

{¶ 1} Defendants-appellants, Robert Lee, Malcolm Stall, and Michael Weese (collectively, “defendants”), appeal the Crawford County Court of Common Pleas judgment denying their joint motion to merge offenses as allied offenses of similar import. For the reasons that follow, we affirm the trial court’s judgment as to case No. 3-10-13 (Weese), affirm the trial court’s judgment as to case No. 3-10-ll(Lee), and affirm in part and reverse in part the trial court’s judgment as to case No. 3-10-12 (Stall).

{¶ 2} This case concerns a home invasion that took place on October 18, 2009, at a residence in Galion, Ohio that was owned by an elderly couple, Kathleen and Sam Siclair. Specifically, at issue on this appeal is whether certain offenses arising out of the home invasion should have been merged because the offenses are allied offenses of similar import.

{¶ 3} The general facts of the case are stated as follows. Late in the evening on October 18, 2009, defendants Lee, Weese, and Stall went to the Siclairs’ home with the purpose of stealing from the home approximately $40,000 in cash, which the defendants believed was hidden in a freezer in the Siclairs’ basement. Defendants tried for approximately one hour to covertly gain entrance into the home, but discovered that all of the doors and windows were locked. During this time, Lee noticed that Mr. Siclair was asleep in one of the bedrooms, while Mrs. Siclair was sitting on the floor in the living room seemingly watching TV.

{¶ 4} Consequently, defendants decided to enter the residence by knocking on the door and forcing their way into the home.

[584] {¶ 5} At approximately 11:00 p.m., Weese went to the back door and knocked on the door. Mrs. Siclair got up, went to answer the back door, and saw a young man (Weese) with a coat covering his mouth. Weese informed Mrs. Siclair that he had a question for her, at which point Weese pushed the door open with such force that it knocked Mrs. Siclair to the ground, causing her to hit her head on the back of an end table and suffer a concussion. Additionally, Mrs. Siclair stated that after she was pushed and hit her head on the end table, she was also punched in the face, which resulted in a cut to her head that required seven stitches at the hospital.

{¶ 6} Upon gaining entry in the house, Lee and Weese proceeded to search the house for the $40,000 they believed was hidden in a freezer in the basement. Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that while searching the house, defendants repeatedly demanded that she disclose the location of the money and drugs, and when she did not give them a location, she was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she had breathing due to the duct tape, the pain from being struck repeatedly, along with the fact that she suffers from COPD (chronic obstructive pulmonary disease). During the entire home invasion, Mr. Siclair was asleep in a different room, and because of a severe hearing disability did not hear anything.

{¶ 7} Eventually, after cutting the telephone cords to the house, defendants left the home and took with them jewelry and drugs that they had found inside the Siclairs’ house. Subsequent to defendants’ departure, Mrs. Siclair crawled her way to where her husband was sleeping, woke him up, and used a cell phone to call the police.

{¶ 8} On November 9, 2009, the Crawford County Grand Jury indicted all three defendants with the following charges:1 aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree; aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first degree; and felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree. Stall was additionally charged with kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree. Lee was indicted in case No. 09-CR-0169 (appellate case No. 3-10-11), Stall was indicted in ease No. 09-CR-0170 (appellate case No. 3-10-12), and Weese was indicted in case No. 09-CR-0179 (appellate case No. 3-10-13).

[585] {¶ 9} Defendants were arraigned on November 16, 2009. Defendants filed a joint motion to continue their trials on January 8, 2010. Along with the motion to continue, the motion also requested that the trial court issue an order precluding convictions on the counts of aggravated robbery, felonious assault, and kidnapping. Defendants argued in their motion that pursuant to R.C. 2941.25, the felonious-assault and the kidnapping counts were allied offenses of similar import to the aggravated-robbery count, and thus, defendants could be convicted only on the aggravated-robbery count. The state filed its response to defendants’ motion on January 11, 2010, claiming that the issue of merger could be determined only at the sentencing phase of the trial.

{¶ 10} On January 11, 2010, the trial court issued its order, denying the portion of the motion that was seeking a continuance of the trial date. Thereafter, on January 21, 2010, defendants appeared before the trial court, entered pleas of guilty to the charges set forth in the indictments, and requested to reserve the right to argue the issue of merger at sentencing. Judgment entries of conviction were issued on February 1, 2010.

{¶ 11} On March 4, 2010, defendants filed their response to the state’s memorandum in opposition on the merger issue. On that same date, the state filed its allied-offense brief, and on March 5, 2010, defendants filed their allied-offense brief.

{¶ 12} A hearing on the merger issue was held on March 5, 2010. Defendant Lee, Mrs. Siclair, and Detective Chad Filliater testified at the hearing. Following the presentation of the evidence, the trial court allowed defendants and the state time to present their written closing arguments. Defendants and the state filed their final briefs on March 15, 2010. Thereafter, on March 31, 2010, the trial court issued its ruling on the merger issues, denying the motion to merge the offenses of felonious assault and kidnapping with the offense of aggravated robbery.

{¶ 13} Defendants were sentenced on April 5, 2010, as follows: on the aggravated-burglary offense, Lee, Weese, and Stall were all sentenced to ten years in prison; on the aggravated-robbery offense, Lee, Weese, and Stall were all sentenced to ten years in prison; on the felonious-assault offense, Lee, Weese, and Stall were all sentenced to eight years in prison; and as to Stall on the kidnapping offense, he was sentenced to ten years in prison. All of defendants’ prison sentences, including the additional unrelated sentences, were ordered to be served consecutively.

{¶ 14} Defendants now appeal and raise only one assignment of error:

[586] The trial court erred in failing to hold that offenses of aggravated robbery, felonious assault and kidnapping were allied offenses of similar import, requiring merger of the offenses for purposes of sentencing.

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State v. Lee, 2010 Ohio 5672, 943 N.E.2d 602, 190 Ohio App. 3d 581 (Ohio Ct. App. 2010).

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