State v. Love

2014 Ohio 1603

Opinion

[Cite as State v. Love, 2014-Ohio-1603.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA16 : vs. : : DECISION AND JUDGMENT WARREN L. LOVE, : ENTRY : Defendant-Appellant. : Released: 04/10/14 _____________________________________________________________ APPEARANCES:

Andrew T. Sanderson, Burkett & Sanderson, Inc., Newark, Ohio, for Appellant.

Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr., Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} This is an appeal from a Hocking County Common Pleas Court

judgment convicting Appellant after a jury found him guilty of five felony

offenses, which included aggravated robbery and felonious assault, both

with firearm specifications, tampering with evidence, aggravated trafficking

in drugs, and having weapons while under a disability. Appellant was

sentenced to an aggregate sentence of twenty-three years as a result of his

convictions. On appeal, Appellants raises two assignments of error, Hocking App. No. 13CA16 2

contending that 1) his conviction was based upon insufficient evidence; and

2) the trial court committed harmful error in imposing sentence.

{¶2} Because we conclude that a rational trier of fact could have

found all of the essential elements of aggravated robbery were proven

beyond a reasonable doubt and, as such, that Appellant’s conviction for

aggravated robbery was supported by sufficient evidence, Appellant’s first

assignment of error is overruled. Further, in light of our conclusion that

Appellant’s aggravated robbery and felonious assault convictions involved

two separate victims, we cannot conclude that the trial court erred in failing

to merge these convictions for purposes of sentencing. Finally, because the

trial court was required, under R.C. 2929.14(B)(1)(g) to impose consecutive

sentences for both firearm specifications, we find no “harmful error” in the

imposition of the sentences. As such, Appellant’s second assignment of

error is also overruled. Accordingly, the decision of the trial court is

affirmed.

FACTS

{¶3} A multi-count indictment was brought against Appellant on

February 22, 2013, charging Appellant with aggravated robbery with a

firearm specification, a first degree felony in violation of R.C.

2911.01(A)(1) and 2941.145, felonious assault with a firearm specification, Hocking App. No. 13CA16 3

a second degree felony in violation of R.C. 2903.11(A)(2) and 2941.145,

tampering with evidence, a third degree felony in violation of R.C.

2921.12(A)(1), aggravated trafficking in drugs, a third degree felony in

violation of R.C. 2925.03(A)(1), having weapons while under a disability, a

third degree felony in violation of R.C. 2923.13(A)(2), and receiving stolen

property, a fifth degree felony in violation of R.C. 2913.51(A). Appellant

pled not guilty and the matter proceeded to a two-day trial, beginning on

June 11, 2013.

{¶4} The State’s theory at trial was that a drug transaction was

arranged as a “subterfuge” to commit robbery. The State presented three

witnesses that were present the night the incident occurred: Sarah

Williamson, Thomas Bailey, and Michael Herrold. Williamson testified that

she had been in contact with an old friend, Amanda Thompson, that had

asked her if she could “get rid of any Perc 30s[,] or 30 mg. Percocet pills.

She testified that her friend, Thomas Bailey, wanted some, so she essentially

set up the transaction, the plan being for Thompson to bring the drugs to a

local Speedway. Apparently, however, when it was all said and done,

Thompson arrived in town with two other adults and a baby in her vehicle,

and came to Williamson’s house instead of Speedway. Hocking App. No. 13CA16 4

{¶5} Williamson testified that Thomas Bailey and Michael Herrold

were with her on the night of the incident. She testified that after she handed

the money for the drugs to an occupant named Sharvonne, who was seated

in the front seat of the vehicle, Appellant, who was seated in the back of the

vehicle, jumped out with a gun, told Bailey and Herrold to get on the

ground, and then went through Bailey’s pockets. Williamson then detailed

the events that led to a shooting, which formed the basis of the felonious

assault charge, which is not at issue on appeal.

{¶6} Bailey and Herrold also testified, however, both denied any

knowledge of a drug transaction. Their testimony will be detailed more fully

below, however, both testified in accordance with Williamson, with respect

to Appellant jumping out the vehicle with a gun, ordering them to the

ground, and robbing Bailey. The defense theory at trial seemed to be that

this was simply a drug deal that went wrong, and that no theft offense, and

thus, no aggravated robbery occurred. However, Appellant did not testify at

trial, nor present any witnesses in his defense. At the close of the State’s

evidence, Appellant moved for acquittal pursuant to Crim.R. 29(A), which

was denied by the trial court, and the matter was submitted to the jury for

determination. Hocking App. No. 13CA16 5

{¶7} The jury convicted Appellant of aggravated robbery, felonious

assault, aggravated trafficking in drugs, tampering with evidence, having a

weapon while under a disability, and both firearm specifications. Appellant

was acquitted on the charge of receiving stolen property. The trial court

sentenced Appellant to a ten-year term of imprisonment on the aggravated

robbery conviction and a seven-year term of imprisonment on the felonious

assault conviction, to be served consecutively to one another. The trial court

also sentenced Appellant to three-year terms of imprisonment on each

firearm specification, to be served consecutively to one another and

consecutively to the underlying charges, for an aggregate prison term of

twenty-three years. The sentences for the remaining convictions were

ordered to be served concurrently to these sentences.

{¶8} It is from the trial court’s August 6, 2013, judgment entry of

sentence that Appellant now brings his timely appeal, assigning the

following errors for our review.

ASSIGNMENTS OF ERROR

“I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS BASED UPON INSUFFICIENT EVIDENCE TO SUSTAIN THE SAME.

II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN THE SENTENCING OF THE DEFENDANT-APPELLANT.”

ASSIGNMENT OF ERROR I Hocking App. No. 13CA16 6

{¶9} In his first assignment of error, Appellant contends that the trial

court erred in failing to direct a verdict in his favor at the conclusion of the

State’s case, and that his conviction for aggravated robbery was not

supported by sufficient evidence.1 More specifically, Appellant argues that

evidence of a predicate theft offense was lacking, and without such, there

can be no aggravated robbery. Appellant also suggests that the use of the

firearm was in furtherance of a drug transaction, rather than a theft offense.

{¶10} “A motion for acquittal under Crim.R. 29(A) is governed by

the same standard as the one for determining whether a verdict is supported

by sufficient evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-

2417, 847 N.E.2d 386 (2006), ¶ 37. When reviewing the sufficiency of the

evidence, our inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could support a finding

of guilt beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997) (stating that “sufficiency is a test of adequacy”);

State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991). The standard

of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the

1 Upon the close of the State’s case, Appellant made a motion for acquittal under Crim.R. 29(A), which was denied by the trial court. Hocking App. No. 13CA16 7

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, (1979); Jenks at 273. Furthermore, a reviewing court is not to

assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.”

Thompkins at 390.

{¶11} Thus, when reviewing a sufficiency-of-the-evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996);

State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing

court will not overturn a conviction on a sufficiency-of-the-evidence claim

unless reasonable minds could not reach the conclusion that the trier of fact

did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State

v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

{¶12} On appeal, Appellant challenges his conviction for aggravated

robbery, a first degree felony in violation of R.C. 2911.01(A)(1), as well as

the firearm specification attached thereto. R.C. 2911.01 provides, in

pertinent part, as follows:

“(A) No person, in attempting or committing a theft offense,

as defined in section 2913.01 of the Revised Code, or in Hocking App. No. 13CA16 8

fleeing immediately after the attempt or offense, shall do

any of the following:

(1) Have a deadly weapon on or about the offender’s person

or under the offender’s control and either display the

weapon, brandish it, indicate that the offender possesses

it, or use it[.]”

The firearm specification at issue was brought pursuant to R.C. 2941.145.

{¶13} Here, a review of the trial transcript indicates that three

different witnesses testified on behalf of the State, claiming that Appellant

emerged from the back seat of a vehicle with a gun and ordered both

Thomas Bailey and Michael Herrold to the ground. Sarah Williamson

testified that this occurred in the midst of a drug transaction, after she had

handed cash for drugs to someone in the front seat of the car. She testified

that after she handed over the money to an occupant in the front seat,

Appellant, who was seated in the back, jumped out with a gun. Thomas

Bailey testified that he randomly stopped by Williamson’s house, denying

that he was involved in a drug transaction, and that Appellant jumped out of

the backseat of a vehicle, approached him with a gun, ordered him to the

ground, searched his pockets and took his money. Michael Herrold testified

that although he was ordered to the ground he did not get down, but instead Hocking App. No. 13CA16 9

stood as Appellant went through Bailey’s pockets. Subsequently, as

Appellant fled and tried to catch up with the vehicle as it was driving off,

and as Bailey and Herrold tried to chase Appellant, there was testimony that

Appellant turned and shot the gun, hitting Herrold in the leg. Much like

Bailey, Herrold also denied any knowledge of a drug transaction.

{¶14} Despite the fact the testimony differed with respect to whether

a drug transaction was taking place, all three witnesses testified that

Appellant emerged from the vehicle, with a gun, and robbed Bailey. Thus,

the State presented evidence which, if believed, would indicate that an

aggravated robbery occurred, and that each element of the crime, as set forth

above, was met. We now turn to Appellant’s argument regarding the use of

the firearm, and whether it was used in furtherance of a theft offense.

Although there is some question as to whether the firearm subsequently

recovered from the vehicle was the same gun Appellant used during the

commission of the crime, and although there appeared to be some questions

raised as to who actually shot Herrold based upon the expert testimony that

there was no gun residue on Appellant’s hands, three people testified that

Appellant possessed and brandished a gun with a silver handle as he robbed

Bailey. Hocking App. No. 13CA16 10

{¶15} We, as a Court, are not called upon to determine the credibility

of these witnesses, nor weigh the evidence that was presented. Rather, in

considering a sufficiency of the evidence challenge, as set forth above, we

must assess whether the State’s evidence, if believed, would support a

conviction. Thompkins, supra, at 390. Further, in making this assessment,

we “must construe the evidence in a light most favorable to the prosecution.”

Hill at 205 and Grant at 477, supra. Because we conclude, based upon the

evidence presented, that reasonable minds could conclude that all of the

essential elements of the offense of aggravated robbery had been proven

beyond a reasonable doubt, we will not overturn Appellant’s conviction

based upon a sufficiency of the evidence challenge. Accordingly,

Appellant’s first assignment of error is without merit and is, therefore,

overruled.

ASSIGNMENT OF ERROR II

{¶16} In his second assignment of error, Appellant contends that the

trial court committed harmful error in sentencing him. More specifically,

Appellant raises three issues: 1) did the trial court properly determine that

the offenses of aggravated robbery and felonious assault should not merge;

2) did the trial court’s sentencing of Appellant constitute harmful error; and

3) may a trial court order consecutive sentences with respect to firearm Hocking App. No. 13CA16 11

specifications under the circumstances found herein? The State responds by

arguing that the trial court properly found that the sentences did not merge

because the offenses had separate victims, and that the trial court properly

imposed two consecutive three-year terms of imprisonment for the firearm

specifications pursuant to and as required by R.C. 2929.14(B)(1)(g). For the

following reasons, we agree with the State.

{¶17} Appellate courts apply a de novo standard of review in

reviewing a trial court's application of the merger statute, R.C. 2941.25.

State v. Williams, 134 Ohio St.3d 482, 488, 2012-Ohio-5699, 983 N.E.2d

1245, ¶¶ 25-28. “Appellate courts apply the law to the facts of individual

cases to make a legal determination as to whether R.C. 2941.25 allows

multiple convictions .” Id.

{¶18} R.C. 2941.25 “codifies the protections of the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple

punishments for the same offense.” State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute states:

“(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the Hocking App. No. 13CA16 12

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.”

{¶19} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-

3170, ¶ 103, we set forth the analysis that applies when determining if

offenses should merge under R.C. 2941.25:

“Through a series of opinions the Supreme Court of Ohio has

advised and re-advised lower courts on the difficult task of

applying Ohio's multiple-count statute to determine which

criminal convictions require merger.' [ State v. Delawder, 4th

Dist. Scioto App. No. 10CA3344, 2012-Ohio-1923, ¶ 39]. In

the plurality decision of State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, the Court expressly

overruled its then current test for merger. Under the new test,

the trial court must first determine ‘whether it is possible to Hocking App. No. 13CA16 13

commit one offense and commit the other with the same

conduct, not whether it is possible to commit one without

committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the

offenses are so alike that the same conduct can subject the

accused to potential culpability for both, they are ‘of similar

import’ and the court must proceed to the second step. The

court must then determine whether the offenses in fact were

committed by the same conduct, i.e., committed as a single act

with a single animus. Id. at ¶ 49. If so, merger is necessary.

However, if the offenses resulted from separate acts or were

performed with a separate animus, or if the commission of one

offense will never result in the commission of the other, the

offenses will not merge. Id. at ¶ 51.”

{¶20} Here, a review of the record reflects that although the

aggravated robbery and felonious assault charges stemmed from the same

course of conduct, each charge involved a different victim. Thomas Bailey

was the victim of aggravated robbery while Michael Herrold was the victim

of felonious assault. Ohio courts have routinely recognized that separate

convictions and sentences are permitted when the same course of conduct

affects multiple victims. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio- Hocking App. No. 13CA16 14

5304, 776 N.E.2d 26, ¶ 48 (finding the court could impose multiple

punishments for aggravated arson as defendant “caused six offenses of

dissimilar import because six different people were placed at risk” when

defendant set one structure on fire); State v. Jones, 18 Ohio St.3d 116, 480

N.E.2d 408 (1985) (determining that defendant could be sentenced for two

convictions of aggravated vehicular homicide, even though the convictions

arose out of the same conduct, when the conduct resulted in the death of two

individuals); State v. Crisp, 4th Dist. Scioto No. 10CA3404, 2012-Ohio-

1730, ¶ 36 (finding that “[i]n situations where a defendant has knowledge

that more than one victim could be harmed, courts have concluded there is a

separate animus for each victim at risk”); State v. Tapscott, 7th Dist.

Mahoning No. 11 MA 26, 2012-Ohio-4213, ¶ 41; quoting Jones at 118

(“multiple sentences for a single act committed against multiple victims is

permissible where the offense is defined in terms of conduct toward ‘another

as such offenses are of dissimilar import; the import being each person

affected.’ ”); State v. Angus, 10th Dist. No. 05AP-1054, 2006-Ohio-4455, ¶

34 (“Where a defendant's conduct injures multiple victims, the defendant

may be convicted and sentenced for each offense involving a separate

victim.”). Hocking App. No. 13CA16 15

{¶21} Because Appellant’s aggravated robbery and felonious assault

convictions involved two different victims, the imposition of multiple

punishments does not offend double jeopardy principles or R.C. 2941.25.

The offenses are of dissimilar import because each offense involved a

different victim. Consequently, the trial court did not err by failing to merge

the convictions.

{¶22} We next consider Appellant’ argument with respect to the

imposition of two three-year terms of imprisonment on the firearm

specifications, which were ordered to be served consecutively to each other,

and consecutively to the consecutive sentences imposed on the aggravated

robbery and felonious assault convictions. Appellant’s argument is

primarily premised upon his contention that aggravated robbery and

felonious assault were allied offenses of similar import that should have

been merged. We have already determined that they are not allied offenses

of similar import under these facts and should not have been merged for

purposes of sentencing. Appellant further argues, however, that even if it is

determined that those offenses should not merge, that the firearm

specifications must be viewed as “coming from a single transaction and may

not be ordered to run consecutive to one another.” We disagree. Hocking App. No. 13CA16 16

{¶23} Several statutory provisions are relevant to our analysis of this

issue. R.C. 2929.14(B)(1)(a)(ii) requires a trial court to impose a three-year

prison term upon an offender who is convicted of or pleads guilty to a R.C.

2941.145 firearm specification. R.C. 2929.14(B)(1)(b) precludes a trial court

from imposing “more than one prison term on an offender [for a firearm

specification] for felonies committed as part of the same act or transaction,”

unless R.C. 2929.14(B)(1)(g) authorizes it. State v. Ayers, 12th Dist. Warren

No. CA2011-11-123, 2013-Ohio-2641, ¶ 22; State v. Sheffey, 8th Dist.

Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 27.

{¶24} R.C. 2929.14(B)(1)(g) states:

“If an offender is convicted of or pleads guilty to two or more

felonies, if one or more of those felonies are aggravated

murder, murder, attempted aggravated murder, attempted

murder, aggravated robbery, felonious assault, or rape, and if

the offender is convicted of or pleads guilty to a specification of

the type described under division (B)(1)(a) of this section in

connection with two or more of the felonies, the sentencing

court shall impose on the offender the prison term specified

under division (B)(1)(a) of this section for each of the two most

serious specifications of which the offender is convicted or to Hocking App. No. 13CA16 17

which the offender pleads guilty and, in its discretion, also may

impose on the offender the prison term specified under that

division for any or all of the remaining specifications.”

(Emphasis added)

{¶25} In State v. Isreal, 12th Dist. Warren No. CA2011-11-115,

2012-Ohio-4876, ¶ 73, the court recognized that R.C. 2929.14(B)(1)(g)

creates an exception to the general rule prohibiting multiple punishments for

firearm specifications arising out of a single transaction. The Isreal court

explained as follows:

“[R.C. 2929.14(B)(1)(g) ] carve[s] out an exception to the

general rule that a trial court may not impose multiple firearm

specifications for crimes committed within a single transaction.

The mandatory language of the statute (“the court shall

impose”) also indicates the General Assembly's intention that

the defendant serve multiple sentences for firearm

specifications associated with the enumerated crimes, such as

murder or felonious assault. Had the Legislature intended a per

se rule that sentences for firearm specifications must be served

concurrent with one another, it could have stated as much. Or,

the Legislature could have chosen not to codify R.C. Hocking App. No. 13CA16 18

2929.14(B)(1)(g), which serves as an exception to the rule that

multiple firearm specifications must be merged for purposes of

sentencing when the predicate offenses were committed as a

single criminal transaction.” Id.

{¶26} Appellant was convicted of two felonies that are specified in

R.C. 2929.14(B)(1)(g): aggravated robbery and felonious assault.

Additionally, Appellant was convicted of two firearm specifications as

described in R.C. 2929.14(B)(1)(a) in connection with these two felonies.

Thus, according to R.C. 2929.14(B)(1)(g), the court was required to impose

on Appellant mandatory prison terms as described in 2929.14(B)(1)(a) for

the two most serious specifications of which Appellant was convicted, even

if, as Appellant argues, the crimes resulted from a single transaction. Israel,

at ¶ 71; accord Ayers at ¶ 24; Sheffey at 28; State v. Vanderhorst, 8th Dist.

Cuyahoga No. 97242, 2013-Ohio-1785, ¶¶ 10-11. Consequently, the trial

court did not err by ordering Appellant to serve the firearm specification

prison terms consecutively to one another. Likewise, we reject the argument

that the trial court erred by requiring Appellant to serve the firearm

specification prison terms consecutively to the aggravated robbery and

felonious assault prison terms. R.C. 2929.14(C)(1)(a) plainly requires an

offender to serve a mandatory prison term imposed for a firearm Hocking App. No. 13CA16 19

specification “consecutively to any other mandatory prison term imposed

[for a firearm specification] * * * [and] consecutively and prior to any prison

term imposed for the underlying felony.”

{¶27} In light of the foregoing, we cannot conclude that the trial court

committed harmful error in sentencing Appellant. As such, Appellant’s

second assignment of error is without merit and is, therefore, overruled.

Having found no merit to either assignment of error raised by Appellant, we

affirm the decision of the trial court.

JUDGMENT AFFIRMED. Hocking App. No. 13CA16 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.

For the Court,

BY: ___________________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.