State v. Scott

2013 Ohio 5875

Opinion

[Cite as State v. Scott, 2013-Ohio-5875.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2013CA00063 JAWANZA SCOTT

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012CR1597

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 31, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO EARLE E. WISE, JR. Prosecuting Attorney, 122 Central Plaza, North Stark County, Ohio Canton, Ohio 44702

By: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2013CA00063 2

Hoffman, P.J.

{¶1} Defendant-appellant Jawanza Scott appeals his conviction and sentence

entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the state of

Ohio.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

{¶2} In the late evening hours of October 7, 2012, Alliance City Police Officers

responded to a call phoned in by a neighbor to 42 East Columbia Avenue, Apartment 6,

Alliance, Ohio. The neighbor reported loud voices, bumping, and fighting.

{¶3} After knocking on the door of the residence, hearing a commotion and

screaming, the officers kicked open the door to the residence. The officers found

Angela Lewis in a fetal position on the kitchen floor covered in blood. Appellant was

behind Lewis, with his left arm around her and his right arm raised above her, hand in a

fist. Upon approach of the officers, Appellant rolled off of Lewis into a seated position,

dropped a knife and put his hands in the air.

{¶4} The officers observed Lewis had severe stab wounds to her neck and was

unresponsive. Lewis was found to be 8 weeks pregnant with Appellant’s child.

However, there was conflicting testimony at trial as to whether Appellant was aware

Lewis was pregnant. Responding paramedics pronounced Lewis dead at the scene,

and her pregnancy terminated.

{¶5} Following an autopsy, Lewis’ blood alcohol level was found to be 0.24.

Lewis suffered twenty-six wounds to her person, including blunt force trauma and

defensive wounds to her hand and forearm. Stark County, Case No. 2013CA00063 3

{¶6} Following a jury trial, Appellant was convicted on Count One of murder, in

violation of R.C. 2903.02(B), for purposely causing the death of Angela Lewis as a

proximate result of committing a felonious assault by means of a deadly weapon, to wit:

a knife. Count One also contained a repeat violent offender specification, pursuant to

R.C. 2941.149.

{¶7} On Count Two, Appellant was convicted of voluntary manslaughter, in

violation of R.C. 2903.02(A), for the unlawful termination of Angela Lewis’ pregnancy.

Count Two also contained a repeat violent offender specification, pursuant to R.C.

2941.1493.

{¶8} The trial court sentenced Appellant to 15 years to life on Count One. The

court sentenced Appellant to 10 years in prison on the repeat violent offender

specification attached to Count One. The court ordered the 15 years to life sentence for

Count One run consecutively with the 10-year sentence on the specification for a total

prison term of 25 years to life on Count One.

{¶9} On Count Two, the trial court sentenced Appellant to 11 years on the

voluntary manslaughter charge. The court imposed a 10-year sentence on the repeat

violent offender specification as to Count Two. Further, the court imposed an additional

1,031 days of sentence enhancement due to Appellant’s post-release control status at

the time the offense was committed. The court ordered the 11-year sentence run

consecutive to the 10-year sentence for the repeat violent offender specification and

additional time for the PRC violation. Accordingly, the total prison term on Count Two

amounted to 21 years plus the 1,031 additional days. Stark County, Case No. 2013CA00063 4

{¶10} Finally, the trial court ordered the sentences imposed on Count One and

Count Two run consecutive to each other.

{¶11} Appellant now appeals, assigning as error:

{¶12} “I. THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO

COUNTS OF THE INDICTMENT AS WELL AS THE REPEAT VIOLENT OFFENDER

SPECIFICATIONS (RVO SPECS), IN VIOLATION OF APPELLANT’S RIGHTS

AGAINST DOUBLE JEOPARDY UNDER THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION, AND IN VIOLATION OF R.C. 2941.25.

{¶13} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR ACQUITAL [SIC] OF COUNT ONE BASED UPON THE VERDICTS

RETURN [SIC] BY THE JURY BEING INCONSISTENT OR IN THE ALTERNATIVE TO

SET ASIDE THE VERDICTS AS INCONSISTENT IN VIOLATOIN [SIC] OF

APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES.

{¶14} “III. THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIENCE [SIC].

{¶15} “IV. THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO

1,031 DAYS OF POST-RELEASE CONTROL (PRC) TIME BASED UPON

ISSUFICIENT [SIC] EVIDENCE AS TO THE AMOUNT OF DAYS APPELLANT HAD

REMAINING ON PRC.” Stark County, Case No. 2013CA00063 5

I.

{¶16} In the first assignment of error, Appellant maintains the trial court erred in

failing to merge counts one and two as allied offenses of similar import.

{¶17} R.C. 2941.25 reads,

{¶18} “(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.

{¶19} “(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.”

{¶20} The Ohio Supreme Court has established a two-step test to determine

whether offenses are allied offenses of similar import under R.C. 2941.25(A). First, we

must examine “whether it is possible to commit one offense and commit the other with

the same conduct.” State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942

N.E.2d 1061, ¶ 48. If the answer is yes, we must then determine “whether the offenses

were committed by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’ ” Id. at ¶ 49, 942 N.E.2d 1061, quoting State v. Brown, 119 Ohio St.3d 447,

2008–Ohio–4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting).

{¶21} The case subjudice involved two separate victims, Angela Lewis and her

unborn fetus. The Eighth District Court of Appeals recently addressed the issue of Stark County, Case No. 2013CA00063 6

merger involving multiple victims in State v. Rogers, 994 N.E.2d. 499, 2013-Ohio-3235,

holding,

{¶22} “In CR–553806, the two counts of receiving stolen property in the

indictment revealed property taken from two distinct victims from two separate houses

apparently taken during burglaries that occurred the same day. Rogers argued on

appeal that these acts were identical, so they should have been merged at sentencing.

{¶23} “Even without facts to analyze Rogers's conduct, we can determine from

the face of these convictions that these offenses were not subject to merger. A review of

the elements of the receiving stolen property charges shows an offender must have

“receive[d], retain[ed], or disposed of property of another, knowing or having reasonable

cause to believe that it has been obtained through commission of a theft offense.”

(Emphasis added.) R.C. 2913.51.

{¶24} “Separate victims alone established a separate animus for each offense.

Even if the defendant cannot distinguish one victim's goods from another's does not

mean his conduct did not impact multiple victims. Each victim has a specific and

identifiable right to redress against the conduct of the defendant. The defendant's

conduct in receiving goods he knows to be stolen inherently implies that they may be

from multiple owners or locations. ‘[M]ultiple 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. Tapscott, 2012-Ohio-4213, 978 N.E.2d 210, quoting State v. Jones,

18 Ohio St.3d 116, 118, 480 N.E.2d 408 (1985). See also State v. Franklin, 97 Ohio Stark County, Case No. 2013CA00063 7

St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48; State v. Phillips, 8th Dist. No. 98487,

2013-Ohio-1443, 2013 WL 1461997, ¶ 8–10.”

{¶25} In State v. Cutts, Fifth Dist. Stark App. No. 2008CA000079, 2009-Ohio-

3563, this Court held,

{¶26} “We thus reach the remaining question of whether the convictions of the

murder of Davis and the aggravated murder of her unborn child are allied offenses of

similar import.

{¶27} “Generally, where a defendant commits a crime against two victims, each

offense is necessarily committed with a separate animus. See, e.g., State v.

Scheutzman, Athens App.No. 07CA22, 2008-Ohio-6096, ¶ 12; State v. Luce (Dec. 12,

1980), Lucas App.No. L-79-317, 1980 WL 351657. We recognize in the case sub judice

that the death of the unborn child resulted from maternal death. However, as we

discussed in Appellant's second assigned error, the evidence demonstrated Appellant's

complete failure to take any measures to save the unborn child following the fatal

injuries to Davis. Therefore, separate animus existed between the murder offense

(Davis) and the aggravated murder offense (the unborn child), and we find no reversible

error in the trial court's decision not to merge said offenses for sentencing purposes.”

{¶28} Appellant was convicted of murder for purposely causing “the death of

another” and voluntary manslaughter for the termination of the pregnancy under a fit of

passion or rage. As the offenses of murder and voluntary manslaughter each involved

separate victims, we do not find the trial court erred in sentencing Appellant on both.1

{¶29} The first assignment of error is overruled.

1 We also find there was sufficient evidence to support a finding a separate animus existed as to the death of both victims Stark County, Case No. 2013CA00063 8

II.

{¶30} In the second assignment of error, Appellant maintains the trial court erred

in denying his motion for acquittal on Count One based upon the verdicts returned by

the jury being inconsistent, or in the alternative to set aside the verdicts as inconsistent.

{¶31} Generally, “[i]nconsistency in a verdict does not arise out of inconsistent

responses to different counts, but rather inconsistent responses to the same count.”

State v. Gardner, Montgomery App. No. 21027, 2006-Ohio-1130, ¶ 33, citing State v.

Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137; State v. Lovejoy (1997), 79 Ohio

St.3d 440, 683 N.E.2d 1112. Furthermore, an inconsistent verdict may very well be a

result of leniency and compromise by the jurors, rather than being caused by jury

confusion. State v. Fraley, Perry App.No. 03CA12, 2004-Ohio-4898, ¶ 15, citing United

States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461. See, also, State v.

Ballard, Cuyahoga App.No. 88279, 2007-Ohio-4017, ¶ 17.

{¶32} In this case, the jury returned a split verdict finding Appellant guilty of

murder with regard to the death of Lewis, and guilty of the lesser-included offense of

voluntary manslaughter for the death of the unborn child.

{¶33} In State v. Adams (1978), 53 Ohio St.2d 223, the Ohio Supreme Court

held,

{¶34} “The general rule as to inconsistency in a verdict as between different

counts of an indictment is expressed in the annotation in 18 A.L.R.3d 259, at page 274,

where it is stated that ‘* * * consistency between the verdicts on the several counts of an

indictment * * * is unnecessary where defendant is convicted on one or some counts but Stark County, Case No. 2013CA00063 9

acquitted on others, and the conviction will generally be upheld irrespective of its

rational incompatibility with the acquittal.’

{¶35} “The rule in Ohio, as expressed in Griffin v. State (1868), 18 Ohio St. 438;

Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566; and State v. McNicol (1944),

143 Ohio St. 39, 53 N.E.2d 808, is stated in paragraph four of the syllabus in Browning,

as follows:

{¶36} “ ‘The several counts of an indictment containing more than one count are

not interdependent. A verdict responding to a designated count will be construed in the

light of the count designated, and no other. An inconsistency in a verdict does not arise

out of inconsistent responses to different counts, but only arises out of inconsistent

responses to the same count.’”

{¶37} Based upon the above, we find the jury verdicts as to the different counts

of murder and voluntary manslaughter are not inconsistent. For a similar analysis and

result, see Cutts, supra.

{¶38} The second assignment of error is overruled.

III.

{¶39} In the third assignment of error, Appellant maintains his convictions are

against the manifest weight and sufficiency of the evidence.

{¶40} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable Stark County, Case No. 2013CA00063 10

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

{¶41} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St

.3d 89, 684 N.E.2d 668, 1997–Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed.1990) at 1594.

{¶42} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a “

‘thirteenth juror’ “ and disagrees with the fact finder's resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “ ‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’ “ State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Stark County, Case No. 2013CA00063 11

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.1983). Accordingly,

reversal on manifest weight grounds is reserved for “ ‘the exceptional case in which the

evidence weighs heavily against the conviction.’ “ Id.

{¶43} Appellant was convicted of murder for causing the death of another while

committing an offense of violence, here felonious assault.

{¶44} R.C. 2903.02 provides,

{¶45} “(A) No person shall purposely cause the death of another or the unlawful

termination of another's pregnancy.

{¶46} “(B) No person shall cause the death of another as a proximate result of

the offender's committing or attempting to commit an offense of violence that is a felony

of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of

the Revised Code.”

{¶47} R.C. 2903.11(A)(1)(2), defines felonious assault as,

{¶48} “(A) No person shall knowingly do either of the following:

{¶49} “(1) Cause serious physical harm to another or to another's unborn;

{¶50} “(2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.”

{¶51} As to the termination of Angela Lewis’ pregnancy and the death of the

unborn child, Appellant was convicted of voluntary manslaughter, which is defined in

R.C. 2903.03(A),

{¶52} “(A) No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation occasioned by

the victim that is reasonably sufficient to incite the person into using deadly force, shall Stark County, Case No. 2013CA00063 12

knowingly cause the death of another or the unlawful termination of another's

pregnancy.”

{¶53} The evidence presented at trial demonstrates the officers responded to

the call phoned in by a neighbor reporting loud voices, bumping and fighting. Upon

knocking on the door to the residence, the officers heard a commotion and screaming.

The officers kicked open the door to the residence, finding Angela Lewis in a fetal

position covered in blood. Appellant had one arm around Lewis and one arm raised in

the air, with a fist. Upon the officers’ approach, Appellant moved away from Lewis and

dropped a knife to the ground. The officers observed numerous stab wounds to Lewis’

neck and found her unresponsive. Lewis was pronounced dead at the scene, and her

eight-week pregnancy terminated, resulting in the death of an unborn child. Following a

jury trial, Appellant was convicted of murder and voluntary manslaughter. It is for the

jury, as the trier of fact, to weigh the evidence and judge the credibility of the witnesses.

{¶54} Based upon the evidence presented at trial, we find Appellant’s

convictions were supported by the manifest weight and sufficiency of the evidence.

{¶55} The third assignment of error is overruled.

IV.

{¶56} In the fourth assignment of error, Appellant maintains the trial court erred

in sentencing him to an additional 1,031 days of post-release control time based upon

insufficient evidence as to the amount of days Appellant had remaining as to the terms

of his sanction.

{¶57} Upon our review, we find the record presented is insufficient to

affirmatively demonstrate the alleged error. Appellant did not request an evidentiary Stark County, Case No. 2013CA00063 13

hearing, did not object to the calculation at the time of sentencing, and has not pointed

to evidence in the record demonstrating error in the calculation.

{¶58} Accordingly, the fourth assignment of error is overruled.

{¶59} Appellant’s convictions and sentences in the Stark County Court of

Common Pleas are affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. W. SCOTT GWIN

___________________________________ HON. PATRICIA A. DELANEY Stark County, Case No. 2013CA00063 14

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JAWANZA SCOTT : : Defendant-Appellant : Case No. 2013CA00063

For the reasons stated in our accompanying Opinion, Appellant’s convictions and

sentences in the Stark County Court of Common Pleas are affirmed. Costs to

Appellant.

___________________________________ HON. PATRICIA A. DELANEY