[Cite as State v. Richmond, 2011-Ohio-6450.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96155
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEMETRIUS RICHMOND DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540291
BEFORE: Sweeney, J., Kilbane, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEY FOR APPELLANT Paul Mancino, Jr., Esq. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Mahmoud Awadallah, Esq. William Leland, Esq. Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Demetrius Richmond (“defendant”) appeals his
convictions and consecutive sentences for rape, kidnapping, felonious assault,
domestic violence, and child endangering. After reviewing the facts of the case
and pertinent law, we affirm in part and remand for a limited sentencing hearing to
address the issues of merger of allied offenses and court costs.
{¶ 2} On July 30, 2010, defendant was charged with 11 counts relating to
abuse of his girlfriend’s son, including domestic violence, five counts of felony
child endangering, three counts of misdemeanor child endangering, felonious
assault, rape, and kidnapping. The indictment included sexually violent predator
and repeat violent offender specifications. The case proceeded to a jury trial
where the following evidence was presented: {¶ 3} In 2003, defendant moved in with his girlfriend K.W. (“mother”) and
her four children C.F., T.F.1., T.F.2., and D.F. The oldest of the children, C.F., is
the alleged victim in this case. According to testimony from mother, C.F., and
D.F., defendant physically and sexually abused C.F. over a period of several
years.
{¶ 4} For example, in late August 2005, when C.F. was 11 years old,
defendant threw C.F. out of bed, whipped him with a belt, and ordered him to take
a shower. While C.F. was in the shower, defendant grabbed C.F.’s hand and
threw him into the air. C.F. landed on the sink and fell to the ground. As a
result of this incident, C.F. sustained a fracture in his upper arm near his shoulder.
{¶ 5} Later that day, C.F. complained to the babysitter that his shoulder
hurt. The babysitter removed C.F.’s shirt and noticed that one shoulder
appeared to be higher than the other, and the injured shoulder was swollen and
hot. C.F. told the babysitter that defendant had knocked him down in the shower
and caused the injury. The babysitter called mother and informed her of the
injury, however, mother did not take C.F. to the hospital until three days later when
her sister, W.C. (“aunt”), threatened mother that she would call the police if mother
did not take C.F. to the hospital. Subsequent x-rays confirmed that C.F.’s arm
was fractured.
{¶ 6} When aunt took C.F. to a follow-up visit with the doctor, C.F.
disclosed that defendant had been abusing him. Mother and the children briefly
moved in with aunt, but soon moved back in with defendant. {¶ 7} Another example of the abuse occurred one night in October 2007,
when C.F. was walking to the bathroom. Defendant grabbed C.F., took his pants
off, and pulled him down onto a chair where defendant anally raped C.F.
According to C.F.’s testimony, the rape lasted “10 or 15 minutes,” defendant “was
holding [him] down, [and] it hurt.”
{¶ 8} After the rape, mother and defendant sent C.F. to the store. C.F.
testified that he “was thinking about, should I go somewhere. * * * I wanted to kill
myself. * * * I got my bike and rode off.” Asked where he was going, C.F.
testified, “Far, far away from [defendant]. Far, far away from my home.” C.F.
rode from his home on West 33rd Street and Lorain Avenue to Bay Village where
he knocked on the door of a random house. When the homeowner opened the
door, he found C.F. crying. C.F. stated that he had run away because he was
being abused and he was afraid to go home. The police arrived and took C.F. to
meet his mother, siblings, and social workers at a safe place.
{¶ 9} When the police arrived at the West 33rd Street house, they observed
a man standing outside, who immediately fled. The Cuyahoga County
Department of Child and Family Services (“CCDCFS”) and the Cleveland police
sex crimes unit investigated C.F.’s allegations of physical and sexual abuse.
Mother told the authorities that she was afraid of defendant, and she and her
children moved into a battered women’s shelter, where they stayed for 11 months.
CCDCFS’s investigation determined that the abuse allegations were
substantiated. {¶ 10} Mother testified, however, that she and the children continued to see
defendant during this time, and she admitted to lying to social workers about
visiting defendant and about the abuse. Eventually, mother told police she did
not want to prosecute defendant and would not allow investigators access to the
children. She and the children moved back in with defendant, and the case was
temporarily closed.
{¶ 11} By 2009, all of the children had been removed from mother’s custody.
The children’s maternal grandmother called the police because they were afraid
of defendant, who was still mother’s boyfriend. The case was reopened, and
Detective Georgia Hussein of the Cleveland police sex crimes unit interviewed
C.F., who was living at the Berea Children’s Home. C.F.’s initial reaction was relief
that “somebody finally believes me.” Det. Hussein also interviewed the other
siblings and mother, who refused to disclose defendant’s location. Det. Hussein
arrested her for obstructing justice, and she later agreed to cooperate in the
investigation to avoid an indictment.
{¶ 12} On November 15, 2010, the jury found defendant guilty on all counts.
The court found defendant guilty on the notice of prior conviction, repeat violent
offender, and sexual motivation specifications, but not guilty on the sexually violent
predator specification. The court sentenced defendant to an aggregate term of
28 years in prison.
{¶ 13} Defendant appeals and raises 14 assignments of error for our review.
In his first assignment of error, defendant argues as follows: {¶ 14} “I. Defendant was denied his constitutional right to a jury trial when
the court heard all specifications without a written jury waiver.”
{¶ 15} Specifically, defendant argues that the sexually violent predator
specification should have been tried to the jury.
{¶ 16} Pursuant to R.C. 2945.05, a valid jury waiver “shall be in writing,
signed by the defendant, and filed in said cause and made a part of the record
thereof.” However, R.C. 2971.02(A) states that, “In any case in which a sexually
violent predator specification is included in the indictment * * * charging a violent
sex offense * * * and in which the defendant is tried by a jury, the defendant may
elect to have the court instead of the jury determine the sexually violent predator
specification.”
{¶ 17} Thus, bifurcation of a sexually violent predator specification is
permissible at a defendant’s election to have the court, instead of a jury, decide
the issue. Additionally, specific statutory provisions prevail over general statutory
provisions. Trumbull Cty. Bd. Of Health v. Snyder (1996), 74 Ohio St.3d 357,
658 N.E.2d 783. The Ohio Supreme Court has also held that R.C. 2945.05 does
not apply to prior conviction specifications. State v. Nagel (1999), 84 Ohio St.3d
280, 286, 703 N.E.2d 773 (holding that “a specification is, by its very nature,
ancillary to, and completely dependent upon, the existence of the underlying
criminal charge or charges to which the specification is attached. Therefore, we
have difficulty understanding precisely how it is that R.C. 2945.05 could be found
to apply in circumstances where, as here, a defendant has received a jury trial on the merits of the underlying charges alleged in the indictment”). This court has
applied the same rationale to sexually violent predator specifications in State v.
Oldham (May 13,1999), Cuyahoga App. No. 73644.
{¶ 18} In the instant case, the court found defendant not guilty of the
sexually violent predator specification, therefore, defendant suffered no prejudice,
and his first assignment of error is overruled.
{¶ 19} In his second assignment of error, defendant argues the following:
{¶ 20} “II. Defendant was denied due process of law when the court
refused to examine the grand jury proceedings.”
{¶ 21} Defendant alleges that because two prior indictments against him
were dismissed the same day he proceeded to trial, disclosure of the grand jury
transcript would have revealed that the process was manipulated and the
prosecutors committed misconduct.
{¶ 22} Although there is a general rule of grand jury secrecy, the Ohio
Supreme Court recently identified a limited exeption in State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶41:
{¶ 23} “[A]n accused is not entitled to review the transcript of grand jury
proceedings ‘unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the need
for secrecy.’ A particularized need is established ‘when the circumstances reveal
a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial.’ Determining whether a particularized need exists is a
matter within the trial court’s discretion.” (Internal citations omitted.)
{¶ 24} In the instant case, defendant fails to establish a particularized need
for the grand jury transcripts. “The fact that the grand jury indicted [a defendant]
on elevated charges is not in and of itself a sufficient showing of particularized
need.” State v. Benge (1996), 75 Ohio St.3d 136, 145, 661 N.E.2d 1019.
Additionally, Ohio courts have “determined that a particularized need cannot be
established on the basis of speculative pretrial allegations of potentially
inconsistent testimony.” State v. Perkins, 191 Ohio App.3d 263,
2010-Ohio-5161, 945 N.E.2d 1083, ¶49 (citing State v. Godfrey, 181 Ohio
App.3d 75, 2009-Ohio-547, 907 N.E.2d 1230).
{¶ 25} Accordingly, defendant’s second assignment of error is overruled.
{¶ 26} Defendant’s third assignment of error states the following:
{¶ 27} “III. Defendant was denied a fair trial and due process of law when a
social worker was allowed to testify as to the truth of the allegations based upon
interviews.”
{¶ 28} Specifically, defendant argues that the court improperly allowed a
social worker to testify that C.F.’s allegations were “substantiated,” because this
testimony amounted to an opinion as to the truthfulness of C.F.’s allegations.
{¶ 29} In State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, the
Ohio Supreme Court held that in child sexual abuse cases, an expert may not give
his opinion as to the child’s veracity. However, this court has found that Boston does not apply when the child victim testifies and is subject to cross-examination.
See, e.g., State v. Manning, Cuyahoga App. No. 90326, 2009-Ohio-1600. This
court has also held that evidence of a social worker’s determination regarding
alleged abuse is acceptable, provided the social worker does not testify as to the
truthfulness or credibility of the victim. State v. Jackson, Cuyahoga App. No.
92531, 2010-Ohio-3080.
{¶ 30} In the case at hand, C.F. testified and was subject to
cross-examination.
{¶ 31} Moreover, CCDCFS social worker Michael Bockmiller did not offer an
opinion about C.F.’s credibility. He testified that he is qualified to render a
disposition of a case, as “substantiated, unsubstantiated, or indicated,” and that
these terms are not legal findings but agency determinations used to denote
whether counseling, police investigation, or medical treatment is necessary.
Bockmiller explained that a “substantiated” finding merely indicates that there is
corroborative evidence of abuse or neglect. Bockmiller never offered an opinion
on C.F.’s credibility or whether the alleged abuse occurred. He merely described
CCDCFS procedure when investigating allegations of abuse.
{¶ 32} Therefore, the third assignment of error is overruled.
{¶ 33} In his fourth assignment of error, defendant argues as follows:
{¶ 34} “IV. Defendant was denied his right of confrontation and
cross-examination when witnesses were allowed to testify as to information given
by other persons.” {¶ 35} We review issues concerning Confrontation Clause violations under a
de novo standard. State v. Babb, Cuyahoga App. No. 86294, 2006-Ohio-2209.
Pursuant to the Sixth Amendment to the United States Constitution, out-of-court
statements that are testimonial in nature are inadmissible unless the declarant is
unavailable and the defendant was given a prior opportunity for
cross-examination. Crawford v. Washington (2004), 541 U.S. 36, 52, 124 S.Ct.
1354, 158 L.Ed.2d 177. This test does not apply to nontestimonial hearsay. Id.
{¶ 36} Thus, as a threshold matter, courts must determine whether
statements are testimonial before subjecting them to Crawford standards. Id. at
51-52. Testimonial statements are, among other things, “statements that were
made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.” (Internal
citations omitted.) Id. “In determining whether a statement is testimonial for
Confrontation Clause purposes, courts should focus on the expectation of the
declarant at the time of making the statement; the intent of a questioner is relevant
only if it could affect a reasonable declarant’s expectations.” State v. Stahl, 111
Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two of syllabus.
{¶ 37} Defendant argues that the following statements violate Crawford:
mother’s testimony about what C.F. and a social worker stated to her; aunt’s
testimony about what babysitter stated to her; and Bay Village Police Detective
Kevin Krolkosky’s testimony about what C.F. stated to him. {¶ 38} Upon review we find that all declarants — C.F., social worker
Bockmiller, and babysitter — testified at trial and were subject to
cross-examination. The Crawford Court reiterated “that, when the declarant
appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements. See California v.
Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). * * * The Clause
does not bar admission of a statement so long as the declarant is present at trial
to defend or explain it.” Crawford, 541 U.S. 59 at fn. 9.
{¶ 39} As Crawford and the Confrontation Clause have no bearing on the
instant case, defendant’s fourth assignment of error is overruled.
{¶ 40} In defendant’s fifth assignment of error, he argues the following:
{¶ 41} “V. Defendant was denied a fair trial when the court allowed
evidence of other bad acts and failed to give any limiting or curative instruction.”
{¶ 42} Specifically, defendant argues that mother’s testimony that he
routinely punched C.F. in the chest as a form of punishment, that he “was messing
with one or two of [her] kids,” and that she and defendant “used a lot of drugs * * *
together,” was unfairly prejudicial and in violation of Evid.R. 404(B).
{¶ 43} The decision to admit or exclude relevant evidence is within the
sound discretion of the trial court. State v. Bey (1999), 85 Ohio St.3d 487, 490,
709 N.E.2d 484. Pursuant to Evid.R. 403(A), relevant evidence “is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Furthermore, Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” See, also, R.C. 2945.59.
{¶ 44} The “other acts” testimony at issue in the instant case does not
squarely fall into one of the enumerated exceptions listed in Evid.R. 404(B) for the
admission of evidence. However, defendant did not request, nor did the court
give to the jury, a limiting instuction. Accordingly, we must consider whether this
constituted plain error. Crim.R. 52(B); State v. Moreland (1990), 50 Ohio St.3d
58, 62, 552 N.E.2d 894.
{¶ 45} Assuming the testimony was improper, upon review, we find any error
harmless given the overwhelming evidence of defendant’s guilt, which was
corroborated by numerous witnesses. See State v. Williams (1988), 38 Ohio
St.3d 346, 351, 528 N.E.2d 910 (holding that “[a]lthough the state clearly
overstepped the bounds of proper judicial inquiry in cross-examining appellant, we
are unable to agree that the error was materially prejudicial to appellant. After a
thorough review of the record, we do not doubt that the remaining, properly
introduced evidence overwhelmingly establishes appellant’s guilt”).
{¶ 46} Accordingly, defendant’s fifth assignment of error is overruled.
{¶ 47} In his sixth assignment of error, defendant argues the following: {¶ 48} “VI. Defendant was denied due process of law when * * * he was
tried, convicted and sentenced on offenses for which the statute of limitations had
expired.”
{¶ 49} R.C. 2901.13(A)(1)(b) provides that the statute of limitations for a
misdemeanor is two years. The domestic violence charge and one count of child
endangering allegedly occurred between August 22, 2005 and October 19, 2007.
The indictment against defendant was filed on July 30, 2010. Thus, these two
misdemeanor offenses were charged more than two years after their occurrence.
{¶ 50} However, because defendant has already served his sentence on
these charges, this assignment of error is moot. On January 24, 2011, the court
sentenced Richmond to six months on both counts to be served concurrent to his
aggregate 28-year prison sentence. The Ohio Supreme Court has held that
“[w]here a defendant, convicted of a criminal offense, has * * * completed the
sentence for that offense, an appeal is moot when no evidence is offered from
which an inference could be drawn that defendant would suffer some collateral
disability or loss of civil rights from the judgment or conviction.” State v. Wilson
(1975), 41 Ohio St.2d 236, 325 N.E.2d 236, syllabus.
{¶ 51} Furthermore, in State v. Payne, Summit App. No. 21178,
2003-Ohio-1140, the court found that the defendant would not suffer any collateral
disability or loss of civil rights where the six-month misdemeanor assault sentence
ran concurrently with a longer felony sentence, and the misdemeanor sentence
had been fully served. {¶ 52} As defendant has served his sentence on the two misdemeanor
charges, his sixth assignment of error is overruled as moot.
{¶ 53} In defendant’s seventh assignment of error, he argues that:
{¶ 54} “VII. Defendant was denied due process of law when the court
[failed] to give an accomplice instruction concerning the testimony of [mother].”
{¶ 55} Specifically, defendant argues that the court should have given the
jury a cautionary instruction concerning mothers’ testimony against him because
mother was an accomplice to the offenses. However, because defendant failed
to request this instruction, we review the issue for plain error. Crim.R. 52(B).
{¶ 56} Generally, accomplice testimony is admissible when accompanied by
the cautionary jury instruction found in R.C. 2923.03(D), which states as follows:
{¶ 57} “If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with complicity in the
commission of * * * an offense, the court, when it charges the jury, shall state
substantially the following:
{¶ 58} ‘The testimony of an accomplice does not become inadmissible
because of his complicity, moral turpitude, or self-interest, but the admitted or
claimed complicity of a witness may affect his credibility and make his testimony
subject to grave suspicion, and require that it be weighed with great caution.
{¶ 59} ‘It is for you, as jurors, in the light of all the facts presented to you
from the witness stand, to evaluate such testimony and to determine its quality
and worth or its lack of quality and worth.’” {¶ 60} Ohio courts have found that the failure to give an accomplice
instruction was harmless when no instruction was requested and the remaining
evidence against the defendant overwhelmingly supported a conviction. State v.
Ochoa, Lucas App. No. L-03-1197, 2004-Ohio-6465; Cleveland Hts. v. Riley (May
20, 1999), Cuyahoga App. No. 74101.
{¶ 61} In the case at hand, although the jury was not given the accomplice
instruction, they were aware that mother was an accomplice testifying for the state
against defendant in exchange for immunity. Moreover, several other witnesses
including C.F., his sister, aunt, and babysitter corroborated mother’s testimony
that defendant broke C.F.’s arm and abused him. Additionally, the court
instructed the jury that it was to determine the credibility of the witnesses and the
weight of the testimony, taking into consideration “the interest or bias the witness
has in the outcome of the verdict.”
{¶ 62} Therefore, the failure to give the required accomplice instruction was
harmless and defendant’s seventh assignment of error is overruled.
{¶ 63} In defendant’s eighth and ninth assignments of error, he argues as
follows:
{¶ 64} “VIII. Defendant was denied due process of law when the court
ruled on defendant’s motion for judgment of acquittal.”
{¶ 65} “IX. Defendant’s convictions are against the manifest weight of the
evidence.” {¶ 66} An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386,
1997-Ohio-52, 678 N.E.2d 541.
{¶ 67} To warrant reversal of a verdict under a manifest weight of the
evidence claim, this court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the judgment must be reversed and a
new trial ordered. Id.
{¶ 68} Defendant argues that his convictions are “based upon lies,
contradictions, fabrications and totally inconsistent statements on the same
subject matter by the same witness.” Specifically, defendant alleges that two of
the witnesses admitted during their testimony that they were “serial liars.” Mother
testified that she initially lied to the authorities about this case by denying
knowledge of defendant’s whereabouts and his abuse of C.F. Mother testified
that she lied to protect defendant when her mind was clouded from using drugs. Additionally, C.F. testified that, in general, he used to lie a lot. For example, he
admitted lying to healthcare providers so that he could stay in the hospital.
{¶ 69} Upon review, we summarily overrule defendant’s eighth assignment
of error, because defendant’s argument is based solely on witness credibility,
which is not a factor that affects whether a conviction is supported by sufficient
evidence. See App.R. 12(A)(2) and 16(A)(7).
{¶ 70} We turn to defendant’s argument that his convictions are against the
manifest weight of the evidence because mother’s and C.F.’s testimony was not
credible. In State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212,
the Ohio Supreme Court held that “the weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” A jury is free to
believe all, part, or none of any witness’s testimony. State v. Antill (1964), 176
Ohio St. 61, 67, 197 N.E.2d 548. Additionally, the Ohio Supreme Court has
noted, “where the decision in a case turns upon credibility of testimony, and where
there exists competent and credible evidence supporting the findings and
conclusions of the trial court, deference to such findings and conclusions must be
given by the reviewing court.” Myers v. Garson (1993), 66 Ohio St.3d 610, 614,
614 N.E.2d 742.
{¶ 71} In the instant case, mother and C.F. testified consistently that
defendant repeatedly abused C.F. This was corroborated by C.F.’s younger
sister, who witnessed the incident when defendant threw C.F. out of the shower.
Additionally, evidence of C.F.’s injuries was supported by aunt’s testimony, babysitter’s testimony, and C.F.’s medical records. The jury was able to see the
witnesses and judge their credibility while they were testifying.
{¶ 72} Accordingly, we find that defendant’s convictions were not against the
manifest weight of the evidence, and his ninth assignment of error is overruled.
{¶ 73} In his tenth and eleventh assignments of error, defendant contends
the following:
{¶ 74} “X. Defendant was denied his rights under the Sixth Amendment
when he was sentenced [to] a maximum consecutive sentence based upon
judicial factfinding.”
{¶ 75} “XI. Defendant was denied due process of law when the court
imposed a consecutive, maximum ten (10) year sentence for a repeat violent
offender when the court failed to make the statutory findings.”
{¶ 76} In the instant case, the court sentenced defendant to the maximum
ten years in prison for the rape conviction, the maximum eight years for felonious
assault, and the maximum ten years for the repeat violent offender specification,
to run consecutive to one another for an aggregate sentence of 28 years in prison.
The sentence for defendant’s remaining counts was to run concurrently.
{¶ 77} The Ohio Supreme Court set forth the standard for reviewing felony
sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124. See, also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470. Kalish, in a plurality decision, holds that appellate courts must apply a
two-step approach when analyzing alleged error in a trial court’s sentencing. “First, they must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court’s decision shall be reviewed under an abuse-of-discretion standard.” Id. at
¶4. Additionally, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768, ¶39, the Ohio Supreme Court held that “trial judges are not obligated to
engage in judicial fact-finding prior to imposing consecutive sentences * * *.”
{¶ 78} In the instant case, defendant does not argue that his sentence is
contrary to law, and upon review, we find that it is within the statutory range and
does not violate the first prong of Kalish. Furthermore, we find that the court
acted within its discretion when sentencing defendant to 28 years in prison.
{¶ 79} The sentencing transcript shows that the trial court considered the
facts of the case, the seriousness of the offenses, defendant’s lengthy criminal
record, and lack of remorse. It also shows that the “court has considered the
seriousness and recidivism factors and purposes and principles of Senate Bill 2.
Prison is very expensive in this state, and in some cases, it’s well worth it. This is
one of those cases * * * You are a sadistic bully who preys on weak, defenseless
individuals. You picked on a defenseless, little boy and used him as your
punching bag for years.”
{¶ 80} The trial court properly considered the factors in R.C. 2929.12 and
adhered to the purposes and principles of sentencing set forth in R.C. 2929.11. Therefore, this court cannot say that the trial court abused its discretion in
imposing maximum consecutive sentences in this case.
{¶ 81} Accordingly, the tenth and eleventh assignments of error are
overruled.
{¶ 82} In his twelfth assignment of error, defendant argues that:
{¶ 83} “XII. Defendant was subjected to unconstitutional multiple
punishments when the court failed to merge various counts of the indictment.”
{¶ 84} Specifically, defendant argues that the court failed to merge his
felonious assault, domestic violence, and child endangering convictions for
purposes of sentencing. He further argues that his rape and kidnapping
convictions should have merged for sentencing; however, a cursory review of the
record shows that the court merged these two convictions, and this argument is
without merit.
{¶ 85} Defendant failed to object to the court’s imposition of multiple
sentences and has therefore waived all but plain error. Under Crim.R. 52(B),
“[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” The Ohio Supreme Court has
expressly held that the imposition of multiple sentences for allied offenses of
similar import is plain error. State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, ¶31, citing State v. Yarbrough, 104 Ohio St.3d 1,
2004-Ohio-6087, 817 N.E.2d 845, ¶96-102. {¶ 86} The Ohio Supreme Court recently established the proper analysis for
determining whether offenses qualify as allied offenses subject to merger pursuant
to R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, ¶48-50 (emphasis in original; internal citations omitted).
{¶ 87} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is possible to
commit one without committing the other. * * * If the offenses correspond to such a
degree that the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of similar import.
{¶ 88} “‘If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same
conduct, i.e., ‘a single act, committed with a single state of mind.’
{¶ 89} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.”
{¶ 90} Felonious assault is defined in R.C. 2903.11(A)(1) as follows: “No
person shall knowingly * * * [c]ause serious physical harm to another * * *.”
Domestic violence is defined in R.C. 2919.25(A) as follows: “No person shall
knowingly cause * * * physical harm to a family or household member.”
Endangering children is defined in R.C. 2919.22(A) as follows: “No person, who is
the parent, guardian, custodian, person having custody or control, or person in
loco parentis of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or
support.” Additionally, defendant was convicted of a furthermore clause, stating
that the child endangerment “violation resulted in serious physical harm * * *.”
{¶ 91} In analyzing these three offenses under Johnson, we find that they
can be committed by the same conduct. Defendant was indicted for one count of
felonious assault, one count of domestic violence, and five counts of endangering
children for conduct that occured between August 22 and 25, 2005. Evidence
presented at trial shows that defendant whipped C.F. with a belt, then threw C.F.
out of the shower and injured his shoulder between these dates. We conclude
that the whipping is “a single act, committed with a single state of mind,” and the
shoulder injury is a second act conducted with a separate animus. Thus,
defendant’s convictions for four counts of endangering children regarding the
whipping should have merged for sentencing, and one count each of felonious
assault, domestic violence, and endangering children regarding the shoulder injury
should have merged for sentencing. See State v. Sutphin, Cuyahoga App. No.
96015, 2011-Ohio-5157; State v. Craycraft, 193 Ohio App.3d 594, 2011-Ohio-413,
953 N.E.2d 337.
{¶ 92} Defendant’s twelfth assignment of error is sustained, and this matter
is remanded to the trial court for further proceedings concerning allied offenses.
Pursuant to State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
¶24, the state may elect which of the offenses to pursue on resentencing.
{¶ 93} In defendant’s thirteenth assignment of error, he argues as follows: {¶ 94} “XIII. Defendant was denied due process of law when the court
imposed court costs in the judgment entry of sentence but did not do so in open
court.”
{¶ 95} R.C. 2947.23(A)(1) provides that “[i]n all criminal cases the judge or
magistrate shall include in the sentence the costs of prosecution * * * and render a
judgment against the defendant for such costs.” In State v. Joseph, 125 Ohio
St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the Ohio Supreme Court held that it is
reversible error for the trial court to impose costs in its sentencing entry when it did
not impose those costs in open court at the sentencing hearing.
{¶ 96} In the instant case, the state concedes that the trial court failed to
impose court costs during defendant’s sentencing. Accordingly, defendant’s
thirteenth assignment of error is sustained and this matter is remanded to the trial
court for the limited purpose of allowing defendant to move for waiver of court
costs.
{¶ 97} In his fourteenth and final assignment of error, defendant argues the
following:
{¶ 98} “XIV. Defendant was denied effective assistance of counsel.”
{¶ 99} Specifically, defendant argues that his trial counsel was ineffective for
failing to request merger of allied offenses at sentencing, failing to move for
dismissal for violation of speedy trial, and failing to dismiss counts barred by the
statute of limitations. {¶ 100} “To substantiate a claim of ineffective assistance of counsel, a
defendant must demonstrate that (1) the performance of defense counsel was
seriously flawed and deficient, and (2) the result of defendant’s trial or legal
proceeding would have been different had defense counsel provided proper
representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407. In
State v. Bradley, the Ohio Supreme Court truncated this standard, holding that
reviewing courts need not examine counsel’s performance if the defendant fails to
prove the second prong of prejudicial effect. State v. Bradley (1989), 42 Ohio
St.3d 136, 538 N.E.2d 373.
{¶ 101} Upon review we find that defendant has failed to show that his
counsel’s alleged omissions had a prejudicial effect on the outcome of trial. First,
the failure to request merger of allied offenses is rendered moot by the disposition
of defendant’s twelfth assignment of error. Second, defendant fails to show that
he was denied the right to a speedy trial, arguing summarily that he was “in jail for
over one (1) year * * *.” Third, we overruled defendant’s assignment of error
concerning the statute of limitations for misdemeanor offenses.
{¶ 102} Accordingly, defendant’s final assignment of error is overruled.
{¶ 103} Judgment affirmed in part, reversed in part and remanded for a
limited sentencing hearing to address the issues of merger of allied offenses and
court costs. {¶ 104} It is ordered that appellee and appellant split the costs herein
taxed.
{¶ 105} The court finds there were reasonable grounds for this appeal.
{¶ 106} It is ordered that a special mandate issue out of this court
directing the common pleas court to carry this judgment into execution. The
defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
{¶ 107} A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS; COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY