[Cite as State v. Sutton, 2015-Ohio-4074.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 102300 and 102302
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
AMY SUTTON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-582703-A and CR-14-582808-B
BEFORE: E.A. Gallagher, J., Keough, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 1, 2015 ATTORNEY FOR APPELLANT
Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Timsi Pathak Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Amy Sutton appeals her convictions for kidnapping,
aggravated robbery, felonious assault, burglary and grand theft in the Cuyahoga County
Court of Common Pleas. Sutton argues that her trial counsel erred in failing to object to
the joinder of certain offenses for trial, that her convictions were not supported by
sufficient evidence and were against the manifest weight of the evidence, that the trial
court failed to make required findings at sentencing and that the trial court failed to merge
certain offenses as allied offenses. For the following reasons, we affirm and remand.
{¶2} On February 24, 2014 Sutton was indicted in CR-14-582808-B for burglary
and grand theft. On March 3, 2014 Sutton was indicted in CR-14-582703-A for
kidnapping, two counts of aggravated robbery, two counts of felonious assault all with
firearm specifications and having weapons while under disability. The state filed a
motion to consolidate the two cases for trial. Sutton’s attorney did not file a brief in
opposition to joinder or otherwise object and the cases were tried together before a jury.
{¶3} The following facts were elicited at trial: On February 7, 2014, Ryan
Swanson found an advertisement for escort services placed on a website called
“backpage.com” by Sutton, which included photos of Sutton and her phone number.
Swanson contacted Sutton via text message and made arrangements to meet for an hour
or a half-an-hour sexual encounter for which Swanson was to pay Sutton $100. At the
time, Sutton and her boyfriend, Earl Banks, were residing at the home of Donald Tanks,
Jr. Sutton instructed Swanson to come to Tanks’ home at 4067 East 68th Street in Cleveland and text her to be let in when he arrived.
{¶4} When Swanson arrived at the home, Sutton let him in the rear door and led
him through a kitchen and into a bedroom. Sutton shut the bedroom door behind them
and asked for the money. Swanson testified that he placed $100 in an envelope on a
dresser and began to undress. Sutton counted the money before beginning to undress as
well. Swanson was completely nude and Sutton was in the process of disrobing when
Swanson heard a “kick” from outside the room. Swanson testified that the bedroom
doorjamb cracked and Earl Banks entered the room. Swanson reached for a handgun
which was in his discarded pants. A struggle ensued between Banks and Swanson over
control of the gun. The two began wrestling and the fight spilled out of the bedroom
and into the kitchen.
{¶5} Donald Tanks testified that he was sleeping in a front bedroom of the
residence when he woke to “a lot of noise” and found Swanson, whom he did not know,
completely naked and wrestling for control of a gun on the kitchen floor with Banks,
whom Tanks knew as Sutton’s boyfriend, and Sutton, who was watching the struggle.
At Banks’ instruction, Tanks struck Swanson over the head with a chair because he did
not understand what was happening and was scared. Tanks testified that the wrestling
between Banks and Swanson continued until the gun discharged during the struggle and
Swanson was shot in the right thigh. In contrast, Swanson testified that Banks gained
control of the gun and shot him twice from a distance of ten feet. The medical testimony
did not support Swanson’s claim that he was shot twice. Swanson also testified that he was pistol whipped in the head by Banks, a fact that was not part of Tanks’ account of the
fight.
{¶6} Tanks testified that after Swanson was shot, Banks gained control of the gun
and threatened to shoot Swanson in the head before Tanks dissuaded him. Tanks pushed
Swanson out of the home and, in response to his pleading, ordered Sutton to give him his
car keys. Sutton threw Swanson’s car keys outside and left the home with Banks, who
was carrying Swanson’s gun in a towel.
{¶7} Swanson, still nude and bleeding from a gunshot wound to his thigh, drove
from the home in his car and shortly thereafter flagged down a passing police cruiser
driven by Cleveland Police Sergeant Bryan Moore. Swanson told Moore that he had
been shot and robbed at a gas station at 71st Street and Harvard. However, a police
investigation quickly revealed this story to be a fabrication. Swanson admitted that he
initially lied to police about the source of his gunshot wound because he did not want his
grandmother to learn that he had solicited a prostitute.
{¶8} Neighbors called the police after hearing the gunshot and Tanks remained at
the home to provide his account of the encounter. Tanks called Sutton and demanded
that she return to the home to speak with police. Sutton told police that she met
Swanson on backpage.com and that they had agreed for him to come over and pay her
$100 for adult dances and talk. Sutton alleged that when Swanson arrived, he took his
clothes off but did not have the agreed upon money and instead pulled out a gun and tried
to rob or rape her at gunpoint. According to Sutton, at that point Banks entered the room and the fight began. She claimed that she did not see the gun go off. Sutton
provided police with the name of Dwayne Wilson as her boyfriend.
{¶9} Michael Levine testified that five days later, in the early morning hours of
February 12, Sutton and Banks, whom he knew through a mutual friend, were at a home
he was renting from his grandmother at 4492 Jewett Avenue in Cleveland. Levine
testified that he handles the renting of the units at 4492 Jewett Avenue and Sutton and
Banks had expressed an interest in renting the home. Levine anticipated introducing
Sutton and Banks to his grandmother and allowed them to spend the night at the home.
{¶10} Levine left the keys to a white Chevy Impala with the license plate “GBW
2832” that his mother had entrusted to him on a TV stand and slept upstairs while Sutton
and Banks slept on the ground level. When he woke the next morning the keys and the
car, which had been parked in the front yard, were gone. He called and sent text
messages to the phone number he had for Sutton and was strung along with promises on
February 12 and 13 that the car would be returned. When it was not, he reported the car
stolen to police.
{¶11} Although Levine testified that he had previously allowed Sutton and Banks
to use his mother’s car in exchange for drugs, he did not give Sutton or Banks permission
to the use the vehicle on February 12, 2014. Levine testified that, had he known that
Sutton and Banks intended to steal his car, he would not have allowed them to spend the
night at his home.
{¶12} Cleveland Police Detective Phillmore Evans testified that he interviewed Sutton at the Fourth District Precinct on February 12, 2014. Sutton told Evans that on
February 7, 2014 she invited Dwayne Wilson to spend the night with her after Swanson
was late to their arranged rendezvous and she no longer believed Swanson was coming to
her home. However, Swanson did appear and when Wilson arrived shortly thereafter he
found Swanson attempting to rape her at gunpoint. Sutton claimed that after the
shooting occurred she left the home separately from Wilson.
{¶13} After the interview concluded and Sutton left the precinct, Kenneth Allen, a
Cleveland police patrol officer spotted a white Chevy Impala with the license plate GBW
2832 in the driveway at 3464 West 73rd Street in Cleveland. Banks was arrested at the
scene in possession of the car’s keys. Banks told Allen that he had just come from the
Fourth District Precinct where he had dropped off a female friend. While police
remained on scene with Banks in the back of a squad car, Sutton appeared and asked to
retrieve her cell phone from the Impala. Sutton was arrested and returned for a second
interview with Evans where she admitted that Dwayne Wilson’s real name was Earl
Banks and that he was the individual involved in the shooting of Ryan Swanson. Sutton
further admitted that she lied to Evans about Banks’ whereabouts and the fact that he had
dropped her off at the precinct earlier in the day.
{¶14} At the conclusion of trial, in CR-14-582703-A the jury found Sutton guilty
of kidnapping, one count of aggravated robbery and two counts of felonious assault and
not guilty of all firearm specifications. The jury found Sutton not guilty of the
remaining charges. In CR-14-582808-B the jury found Sutton guilty of burglary and grand theft.
{¶15} In CR-14-582703-A the trial court merged Sutton’s kidnapping and
aggravated robbery offenses as allied offenses and Sutton’s two felonious assaults as
allied offenses. The state elected to proceed to sentencing on the aggravated robbery
charge and the felonious assault charge, which was in violation of R.C. 2903.11(A)(1).
Sutton was sentenced to an 11-year prison term for aggravated robbery and a five-year
prison term for felonious assault. The trial court ordered Sutton’s sentences in
CR-14-582703-A to be served consecutively for a cumulative prison sentence of 16 years.
{¶16} In CR-14-582808-B the trial court imposed an eight-year prison term for
burglary and a six-month prison term for grand theft. The two terms were ordered to be
served concurrently.
{¶17} In her first assignment of error, Sutton argues that her trial counsel was
ineffective for failing to oppose the joinder of her indictments in CR-14-582703-A and
CR-14-582808-B for purposes of trial. We find no merit to this argument.
{¶18} In order to establish 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,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶19} Sutton argues that the joinder of the two indictments for trial was
inappropriate because the incidents were not relevant to each other and their joinder raised the danger that the jury would convict her solely because it assumed that she had a
propensity to commit criminal acts.
{¶20} Under Crim.R. 8(A), which governs the joinder of offenses, two or more
offenses may be charged together if the offenses “are of the same or similar character, * *
* or are based on two or more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal conduct.” Similarly,
Crim.R. 13 provides that a trial court may order two or more indictments or informations,
or both, to be tried together, “if the offenses or the defendants could have been joined in a
single indictment or information.”
{¶21} The law favors joining multiple offenses in a single trial if the requirements
of Crim.R. 8(A) are satisfied. State v. Ferrell, 8th Dist. Cuyahoga No. 100659,
2014-Ohio-4377, ¶ 38. If it appears, however, that the defendant would be prejudiced
by the joinder, a trial court may grant a severance. Crim.R. 14; State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 95. The defendant bears the burden of
proving prejudice. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d
959, ¶ 29.
{¶22} The state may rebut a defendant’s claim of prejudicial joinder in two ways:
(1) by showing that, if in separate trials, the state could introduce evidence of the joined
offenses as “other acts” under Evid.R. 404(B), which is known as the “other acts” test; or
(2) by showing that the evidence of each crime joined at trial is simple and direct, which
is known as the “joinder test.” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). “A trier of fact is believed capable of segregating the proof on multiple charges
when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th Dist.
Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33, citing State v. Torres, 66 Ohio St.2d 340,
343-344, 421 N.E.2d 1288 (1981). Joinder is therefore not prejudicial when the
evidence is direct and uncomplicated and can reasonably be separated as to each offense.
Id.
{¶23} If the state can meet the requirements of the “joinder test,” it need not meet
the requirements of the stricter “other acts” test. State v. Franklin, 62 Ohio St.3d 118,
122, 580 N.E.2d 1 (1991). A defendant is therefore not prejudiced by joinder when
simple and direct evidence exists, regardless of the admissibility of evidence of other
crimes under Evid.R. 404(B). Id.
{¶24} This court reviews a trial court’s decision on joinder for an abuse of
discretion. State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406, ¶ 15, citing
State v. Segines, 8th Dist. Cuyahoga No. 89915, 2008-Ohio-2041.
{¶25} In this instance, the incidents charged in the two indictments were connected
temporally and factually as described above. Furthermore, the evidence presented by the
state with regard to each offense was simple and direct. There is no indication in the
record that the jury confused the evidence as to the different counts or that the jury was
influenced by the cumulative effect of the joinder. In fact, the jury’s not guilty verdicts
on several of the charges demonstrated the jury’s ability to apply the evidence separately
to each offense. State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 69. Joinder was, therefore, not prejudicial.
{¶26} Sutton’s first assignment of error is overruled.
{¶27} In Sutton’s second assignment of error she argues that the evidence was
insufficient as a matter of law to support a finding beyond a reasonable doubt that
appellant was guilty of kidnapping, aggravated robbery and felonious assault in
CR-14-582703-A and burglary and grand theft in CR-14-582808-B.
{¶28} This court has said that, in evaluating a sufficiency of the evidence
argument, courts are to assess not whether the state’s evidence is to be believed but
whether, if believed, the evidence against a defendant would support a conviction. State v.
Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry then 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. Id.
{¶29} Sutton’s convictions were based on accomplice liability, which is governed
by R.C. 2923.03, the pertinent parts of which state as follows:
(A) No person, acting with the kind of culpability required for the commission of an offense, shall * * * (2) Aid or abet another in committing the offense * * *.
***
(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. {¶30} In CR-14-582703-A Sutton was convicted of kidnapping in violation of
R.C. 2905.01(A)(2), aggravated robbery in violation of R.C. 2911.01(A)(3) and two
counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2). The kidnapping
statute provides:
(A) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes:
(2) To facilitate the commission of any felony or flight thereafter; ***
R.C. 2905.01(A)(2).
{¶31} Sutton argues that there was no evidence that Swanson’s liberty was
restrained in this case. This court has previously defined the element of “restrain the
liberty of the other person” to mean “to limit one’s freedom of movement in any fashion
for any period of time.” State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229,
¶ 23-24, quoting State v. Wingfield, 8th Dist. Cuyahoga No. 69229, 1996 Ohio App.
LEXIS 867 (Mar. 7, 1996). See also State v. Walker, 9th Dist. Medina No. 2750-M, 1998
Ohio App. LEXIS 4067 (Sept. 2, 1998) (restraint of liberty does not require prolonged
detainment); State v. Messineo, 5th Dist. Athens Nos. 1488 and 1493, 1993 Ohio App.
LEXIS 38 (Jan. 6,1993) (grabbing victim’s arm and shaking her constituted restraint). R.C. 2901.01(A)(1) defines “force” as meaning any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.
{¶32} We find that the state offered sufficient evidence of Swanson’s liberty being
restrained. Swanson testified that he did not voluntarily move into the kitchen during
the struggle with Banks and, while he was on the ground in the kitchen, he was not free to
get up and leave because Banks was between himself and the exit. We reject Sutton’s
argument that the state offered insufficient evidence to support a kidnapping charge.
{¶33} With respect to Sutton’s convictions for aggravated robbery and felonious
assault, Sutton argues that she was not complicit in the actions of Banks because she did
not intend for Swanson to get hurt.
To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in
the commission of the crime, and that the defendant shared the criminal
intent of the principal. Such intent may be inferred from the circumstances
surrounding the crime.”
State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, syllabus.
{¶34} “Participation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed.” Id. at 245,
quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist. 1971). “It is a
fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.” State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 143, quoting State v. Johnson, 56 Ohio St.2d 35, 39,
381 N.E.2d 637 (1978). An accused need not foresee the precise consequences of his
conduct. State v. Spates, 8th Dist. Cuyahoga No. 100933, 2015-Ohio-1014, ¶ 54, citing
State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-Ohio-1884, ¶ 29. “To be actionable it
is only necessary that the result is within the natural and logical scope of risk created by
the conduct.” Id. This presumption is rebuttable and the matter is one ultimately for the
trier of fact. State v. Lacavera, 8th Dist. Cuyahoga No. 96242, 2012-Ohio-800, ¶ 29,
citing State v. Wright, 2d Dist. Montgomery No. CA 6394, 1980 Ohio App. LEXIS 9926
(Sept. 30, 1980).
{¶35} In this instance, the state introduced a combination of direct and
circumstantial evidence to demonstrate that Sutton lured Swanson to her home for the
alleged purpose of engaging in sex for hire but with the true purpose of robbing him by
force. That Swanson might suffer serious physical harm as a result of this plan was
entirely foreseeable. Sutton’s argument that she was not complicit in the actions of
Banks because she did not intend for Swanson to be harmed is without merit.
{¶36} In CR-14-582808 Sutton was convicted of burglary in violation of R.C.
2911.12(A)(1) and grand theft in violation of R.C. 2913.02(A)(1). In regard to the
burglary charge, Sutton argues that the state failed to offer sufficient evidence that she
committed a burglary by deception because Levine invited Sutton and Banks to stay the
night in the home. We disagree. R.C. 2911.12(A)(1) defines burglary as follows: (A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense; * * *.
R.C. 2911.12(A)(1).
{¶37} R.C. 2911.10 clarifies that the trespass element of burglary refers to a
violation of R.C. 2911.21 which defines criminal trespass. R.C. 2911.21 further
explains that it is no defense to a trespass charge that the offender was authorized to enter
or remain on the premises when such authorization was secured by deception. R.C.
2911.21(C). Therefore, Sutton’s argument fails because the state presented sufficient
evidence that Levine may have been motivated to allow Sutton and Banks to spend the
night in his home by a fabricated expression of interest in renting the property when in
truth they intended to steal his car keys.
{¶38} We next examine Sutton’s argument that the state failed to present
sufficient evidence to support her conviction for grand theft of a motor vehicle. The
elements of grand theft of a motor vehicle are stated in R.C. 2913.02(A)(1) as follows:
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.
R.C. 2913.02(A)(1). {¶39} Sutton argues that the state failed to present sufficient evidence that she and
Banks exerted control over Levine’s car without his consent. This argument is without
merit because Levine testified that Sutton and Banks did not have permission to use the
vehicle at the time of the offense on February 12, 2014.
{¶40} Sutton’s second assignment of error overruled.
{¶41} In Sutton’s third assignment of error she argues that her convictions for
kidnapping, aggravated robbery and felonious assault in CR-14-582703-A and burglary
and grand theft in CR-14-582808-B were against the manifest weight of the evidence.
{¶42} A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion at trial. State v.
Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th
Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader review, a
reviewing court may determine that a judgment of a trial court is sustained by sufficient
evidence, but nevertheless conclude that the judgment is against the weight of the
evidence.
{¶43} “When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may
disagree ‘with the factfinder’s resolution of conflicting testimony.’” Thompkins at 387,
quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The
reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983). In conducting such a review, this court remains mindful that the credibility of
witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and
two of the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional
case in which the evidence weighs heavily against the conviction.” Thompkins at 387,
quoting Martin, supra.
{¶44} As to CR-14-582703-A, Sutton argues that the jury lost it way in believing
the testimony of Swanson over her own version of the events the night of February 7,
2014, which were presented to the jury by the way of recorded statements provided to
police by Sutton and Banks. Sutton correctly points out that Swanson is not the most
credible witness. Swanson admitted to lying to police about the cause and situs of his
injuries to avoid implicating himself in a prostitution scheme. Furthermore, Swanson’s
account of the altercation between himself and Banks contains what appear to be
embellishments. First, Swanson claimed that Banks broke through the bedroom door
when he confronted Swanson, damaging the doorjamb in the process. There was no
physical evidence to support this allegation.
{¶45} Furthermore, Swanson claimed that Banks first shot him from a distance of ten feet and then, when Swanson struggled to his feet, Banks shot him a second time.
Swanson had gunshot wounds to his thigh on opposite sides and physical evidence and
testimony from the treating physician established that a single bullet had traveled through
and through Swanson’s thigh and no bullets remained in his leg. Additionally, police
recovered a single shell casing from the kitchen.
{¶46} Despite an imperfect accounting of the incident from the victim, Sutton’s
version of events can hardly be given greater credibility. Sutton admitted to arranging
for Swanson to come to her home for sexual conduct for hire but claimed that as time
passed she no longer believed he would arrive and then invited Banks to spend the night
with her. She claimed that Banks had no knowledge of her prostitution activities but
was not troubled by the fact that when Swanson arrived to engage her services, Banks
was also on his way to visit her. Sutton did not call Banks to forestall his arrival despite
the appearance of Swanson. Sutton was unable to explain to police how the apparently
blissfully ignorant Banks could have believed that she gave “massages” at 3 a.m. in the
morning. Furthermore, it is uncontroverted that Sutton lied to police during her initial
interview about her connection to Banks and knowledge of his whereabouts.
{¶47} On these facts we cannot say that the jury clearly lost its way and created a
manifest miscarriage of justice when it chose to believe Swanson over Sutton.
{¶48} In CR-14-582808-B, Sutton again argues that the victim, Mr. Levine, lacked
credibility because he admitted to marijuana and crack cocaine use. Sutton argues that
Levine lied at trial and that he had given Sutton and Banks permission to use his car in exchange for drugs and only reported the car stolen when they were slow to return it.
Levine’s credibility was a matter for the jury to assess and we are not persuaded by
Sutton’s arguments.
{¶49} However, this writer would find Sutton’s conviction for burglary to be
against the manifest weight of the evidence. Weighing all the evidence and reasonable
inferences, considering the credibility of the witnesses involved in the burglary offense
and conflicts in the evidence, this writer believes that the jury lost its way in finding
Sutton guilty of burglary. The state’s theory on the burglary charge is that Sutton and
Banks gained access to Levine’s home the morning of February 12, 2014, by way of a
deception relating to their interest in renting the property when, in truth, their purpose was
to steal Levine’s car keys. This writer believes that the evidence supports this
conclusion. In my opinion, the evidence reveals the theft of the car to be a crime of
opportunity rather than a burglary.
{¶50} Although he attempted to downplay his drug usage, Levine eventually
admitted that Sutton provided him with crack cocaine during the day of February 11,
2014 and that he smoked crack and marijuana that day along with Sutton and Banks.
Levine went upstairs to sleep at 1:30 a.m. on February 12th and as to Sutton and Banks
spending the night, testified as follows:
Question: You let them stay at your house to test the place out?
Answer: They needed a place to stay. They weren’t sleeping anywhere but on the street, from what I was told.
{¶51} Although there may have been some discussion of renting the property, in my opinion, the manifest weight of the evidence suggests that Sutton and Banks were at
Levine’s home into the early morning hours of February 12, 2014, for the purpose of
smoking crack and marijuana with him and, when Levine retired for the night, he allowed
them to stay because they had nowhere else to go. Thus, in my opinion, the theft of
Levine’s car was not the product of deception but rather an independent crime of
convenience while they were lawfully in his home.
{¶52} In short, the writer believes that Sutton and Banks did not gain permission to
enter or remain in Levine’s home the morning of February 12th by deception and,
therefore, did not commit a trespass of the property. Although the state introduced some
scintilla of evidence to survive a sufficiency challenge on this issue, I would find Sutton’s
conviction for burglary to be against the manifest weight of the evidence.
{¶53} However, because there is not unanimity on this issue, the burglary
conviction is affirmed. Reversing a conviction on the manifest weight of the evidence
requires the unanimous concurrence of all three appellate judges. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, at paragraph four of the syllabus, citing
Section 3(B)(3), Article IV of the Ohio Constitution (noting that the power of the court of
appeals is limited in order to preserve the jury’s role with respect to issues surrounding
the credibility of witnesses).
{¶54} Sutton’s third assignment of error is overruled.
{¶55} In Sutton’s fourth assignment of error she claims that the trial court erred
when it failed to merge as allied offenses of similar import Counts 3 and 5 in CR-14-582703-A and Counts 1 and 2 in CR-14-582808-B.
{¶56} R.C. 2941.25(A) allows only a single conviction for conduct that constitutes
“allied offenses of similar import.” But under R.C. 2941.25(B), a defendant charged with
multiple offenses may be convicted of all the offenses if any one of the following is true:
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses were
committed with separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 13, citing State v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).
{¶57} In Ruff the Ohio Supreme Court recently clarified the test a trial court and a
reviewing court must employ in determining whether offenses are allied offenses that
merge into a single conviction, stating:
When the defendant’s conduct constitutes a single offense, the defendant
may be convicted and punished only for that offense. When the conduct
supports more than one offense, however, a court must conduct an analysis
of allied offenses of similar import to determine whether the offenses merge
or whether the defendant may be convicted of separate offenses. R.C.
2941.25(B).
A trial court and the reviewing court on appeal when considering whether
there are allied offenses that merge into a single conviction under R.C.
2941.25(A) must first take into account the conduct of the defendant. In
other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses (1) the offenses are dissimilar in import or
significance — in other words, each offense caused separate, identifiable
harm; (2) the offenses were committed separately, and (3) the offenses were
committed with separate animus or motivation.
At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
Id. at ¶ 24-26.
{¶58} In CR-14-582703-A Sutton argues that her aggravated robbery and
felonious assault convictions should have been merged as allied offenses. Although
Sutton requested the merger of all offenses in CR-14-582703-A, the trial court merged
only the aggravated robbery with the kidnapping and the two felonious assaults with each
other.
{¶59} Sutton was convicted of aggravated robbery in violation of R.C.
2911.01(A)(3) which provides:
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(3) Inflict, or attempt to inflict, serious physical harm on another.
{¶60} In this case, the felonious assault and the aggravated robbery were
committed with the same conduct. The facts reveal that Swanson was shot once in the
leg during the struggle with Banks. Both the aggravated robbery and merged felonious
charge required the state to establish the element of serious physical harm. The serious
physical harm element in both counts references the same gun-related injuries suffered by
Swanson. Therefore, we cannot say that the two offenses were committed with separate
conduct or resulted in separate, identifiable harms such that the offenses were of
dissimilar import.
{¶61} The sole remaining question is whether the offenses were committed with a
separate animus. This court in State v. Bailey, 8th Dist. Cuyahoga No. 100993,
2014-Ohio-4684, stated:
However, the issue of whether two offenses are allied depends not only on
whether the two crimes were committed in the same act, but also with a
single state of mind. The Ohio Supreme Court has defined the term
“animus” to mean “purpose or, more properly, immediate motive.” State v.
Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). Because animus is
often difficult to prove directly, it may be inferred from the surrounding
circumstances. When “an individual’s immediate motive involves the
commission of one offense, but in the course of committing that crime he must, a priori, commit another, then he may well possess but a single
animus, and in that event may be convicted of only one crime.” Id.
Thus, when determining whether two offenses were committed with a separate animus, the court must consider (1) whether the first offense was merely incidental to the second offense or whether the defendant’s conduct in the first offense demonstrated a significance independent of the second, and (2) whether the defendant’s conduct in the first offense subjected the victim to a substantial increase in the risk of harm apart from that involved in the second offense. State v. Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912, ¶ 17.
Id. at ¶ 34 and 35.
{¶62} In this instance, we cannot say that the trial court erred in refusing to merge
the offenses because the record contains evidence that establishes the crimes were
committed with separate animus. This court has previously held that where a defendant
uses greater force than necessary to complete aggravated robbery, he shows a separate
animus. Bailey, ¶ 37. Swanson testified that during the course of his struggle with
Banks, Banks obtained control of the gun and, from a standing position at a distance of
ten feet, Banks shot Swanson, who remained on the ground. Banks, in control of the
gun and standing ten feet from Swanson, naked and on the ground, possessed a separate
animus when he shot Swanson as opposed to his animus in committing the aggravated
robbery. The shooting was not necessary to complete the robbery at that point. Id. at ¶
38. Therefore, the felonious assault was not merely incidental to the aggravated robbery
and the convictions do not merge.
{¶63} In CR-14-582808-B Sutton argues that her burglary and grand theft
convictions should have been merged as allied offenses. We disagree because the record reflects that the offenses were committed with separate conduct.
{¶64} Sutton’s burglary was accomplished when she and Banks used deception to
obtain Levine’s consent to remain in the home throughout the night with the intention to
commit a theft offense. State v. Richardson, 8th Dist. Cuyahoga No. 100115,
2014-Ohio-2055, ¶ 32; State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051, ¶
80. Only at some later, unknown point during the night, after the trespass by deception
had been accomplished and Levine had retired for the night did Sutton and Banks steal
the keys to Levine’s car. Therefore, the two offenses were committed with separate
conduct and do not merge as allied offenses of similar import. Id.; State v. Smith, 8th
Dist. Cuyahoga No. 100641, 2014-Ohio-3420, ¶ 47.
{¶65} Sutton’s fourth assignment of error is overruled.
{¶66} Sutton argues in her fifth assignment of error that the trial court erred by
imposing the maximum consecutive sentence and failing to make the required findings
under R.C. 2929.11 and 2929.12.
{¶67} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). Under R.C. 2953.08(G)(2), an appellate court may increase, reduce or
modify a challenged felony sentence or may vacate the sentence and remand the matter to
the sentencing court for resentencing if it “clearly and convincingly finds” that the
sentence is “contrary to law.” R.C. 2953.08(G)(2).
{¶68} A sentence is contrary to law if the trial court fails to consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. State v. Carrington, 8th Dist. Cuyahoga No. 100918,
2014-Ohio-4575, ¶ 22, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511,
2013-Ohio-5025, ¶ 7.
{¶69} Sutton argues that the trial court failed to consider the purposes and
principles of sentencing under R.C. 2929.11 or the seriousness and recidivism factors
listed in R.C. 2929.12 when it imposed the maximum sentence for the aggravated robbery
and burglary offenses and ordered the aggravated robbery sentence to be served
consecutively to Sutton’s sentence for felonious assault. Sutton further argues that the
trial court erred in failing to give a specific analysis as to its consideration of the factors
in R.C. 2929.12.
{¶70} R.C. 2929.11 provides that a sentence imposed for a felony shall be
reasonably calculated to achieve two “overriding purposes” of felony sentencing: (1) “to
protect the public from future crime by the offender and others” and (2) “to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A), (B). R.C. 2929.11(A) states that “[t]o achieve these
purposes, the sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or both.” R.C. 2929.11(B)
further requires that the sentence imposed be “commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the victim” and “consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶71} R.C. 2929.12 grants discretion to the trial court to determine the most
effective way to comply with the purposes and principles set forth in R.C. 2929.11 when
imposing a sentence. However, in exercising this discretion, the court must consider a
non-exhaustive list of factors relating to the seriousness of the offender’s conduct and the
likelihood of recidivism and may, in addition, consider any other factors relevant to
achieving these purposes and principles of sentencing.
{¶72} Although there is a mandatory duty to “consider” the relevant statutory
factors under R.C. 2929.11 and 2929.12, the sentencing court is not required to engage in
any factual findings under R.C. 2929.11 or 2929.12. State v. Bement, 8th Dist. Cuyahoga
No. 99914, 2013-Ohio-5437, ¶ 17; State v. Combs, 8th Dist. Cuyahoga No. 99852,
2014-Ohio-497, ¶ 52. While trial courts must carefully consider the statutes that apply to
every felony case, it is not necessary for the trial court to articulate its consideration of
each individual factor as long as it is evident from the record that the principles of
sentencing were considered. State v. Roberts, 8th Dist. Cuyahoga No. 89236,
2008-Ohio-1942, ¶ 10. This court has found that a trial court’s statement in its sentencing
journal entry that it considered the required statutory factors, without more, is sufficient to
fulfill a trial court’s obligations under R.C. 2929.11 and 2929.12. State v. Clayton, 8th
Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9.
{¶73} Sutton’s argument that the trial court failed to consider the relevant statutory
factors under R.C. 2929.11 and 2929.12 is without merit. Aside from the trial court’s notation in the sentencing entry that it “considered all required factors of law” including,
specifically, R.C. 2929.11, the record in this case reflects that the trial court did, in fact,
consider both R.C. 2929.11 and 2929.12 when sentencing Sutton. Both Sutton and her
counsel had an opportunity to address the trial court prior to sentencing and make
arguments in mitigation. The trial court obtained a presentence investigation report for
Sutton and noted Sutton’s drug abuse and significant criminal history. Sutton’s
argument that the trial court failed to consider R.C. 2929.11 and 2929.12 is without merit.
{¶74} Aside from her assertion that the trial court failed to consider R.C. 2929.11
and 2929.12, Sutton presents no argument regarding the trial court’s imposition of
consecutive sentences in light of the above facts. Regarding the imposition of the
maximum sentence for aggravated robbery, there is no statutory requirement for findings
in order to impose such a sentence, and a trial court has the discretion to impose a prison
sentence within the statutory range. “Trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum * * * sentences.” State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Because the trial
court sentenced Sutton within the statutory range, there was no error with the imposition
of a maximum sentence.
{¶75} Sutton’s fifth assignment of error is overruled.
{¶76} Sua sponte, we note the trial court failed to incorporate its consecutive
sentences findings in the sentencing journal entries as required under State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. A trial court’s failure to
incorporate statutory findings made under R.C. 2929.14(C)(4) in the sentencing journal
entry after properly making those findings at the sentencing hearing is a “clerical
mistake” that may be corrected by the court through a nunc pro tunc entry “to reflect what
actually occurred in open court.” Id. at ¶ 29. It “does not render the sentence contrary to
law.” Id. We further note that as to CR-14-582703-A the trial court’s January 12, 2015
journal entry titled, “sentencing entry dated 11-20-2014 is corrected” is incomplete as to
Count 1 of the indictment and must be corrected.
{¶77} The judgment of the trial court is affirmed and case remanded to the lower
court for further proceedings consistent with this opinion.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and SEAN C. GALLAGHER, J., CONCUR