State v. Kennedy , 2013 Ohio 4221 ( 2013 )

[Cite as State v. Kennedy, 2013-Ohio-4221.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-120337
TRIAL NO. B-1104558
Plaintiff-Appellee, :
vs. :
O P I N I O N.
KENNETH KENNEDY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 27, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Kenneth Kennedy appeals from the judgment
of the Hamilton County Court of Common Pleas convicting him of multiple offenses
in relation to two separate incidents that occurred between March and June 2006 in
Cincinnati. He now appeals, claiming errors in (1) the failure to sever the offenses,
(2) the admission of hearsay evidence, (3) the admission of other-acts evidence, (4)
the sufficiency and the manifest weight of the evidence, and (5) the imposition of
sentence, including the court’s failure to merge offenses, to make the statutorily-
required findings before imposing consecutive sentences, and to notify of postrelease
control.
{¶2} Because the trial court imposed consecutive sentences for all offenses
without making the statutorily-required findings and failed to notify Kennedy of his
postrelease-control requirements with respect to some of the offenses, we must
vacate the sentences and remand the case for resentencing, at which time the court
can provide Kennedy with the necessary postrelease-control notifications. We affirm
the trial court’s judgment in all other respects.
I. Background Facts
A. Gambling-Apartment Shootings
{¶3} In the early morning of March 27, 2006, Janie Matthews, known as
“Bedrock,” Rodney Turnbow, Derrick Dumas, and others were playing cards for
money in Matthews’s second-floor apartment in the Walnut Hills area of Cincinnati.
According to Dumas, Jaydee Thompson had participated in the game earlier in the
night.
{¶4} About 30 minutes after Thompson left, at least two armed and
masked male assailants entered Matthews’s apartment building. One of the
assailants knocked on Matthews’s door. After Matthews had partially opened the
door, he shot her with a 9-mm semiautomatic weapon and forced his way in. He
2
OHIO FIRST DISTRICT COURT OF APPEALS
then fired at Turnbow with the same gun, striking him in the head, and robbed
everyone inside the apartment, including Dumas.
{¶5} Later, as the assailants fled down the stairs of the apartment
building, they encountered Deandre Thomas. Thomas recognized Thompson as one
of the assailants, and Thompson shot Thomas in the face.
{¶6} When the police arrived, they found Matthews just inside the
apartment, near the door, and Turnbow nearby. Both died as a result of their
gunshot wounds. The police found Thomas on stairs of the apartment building. He
survived and identified Thompson as the man who had shot him. Ballistic-test
results on the cartridges that the police found at the crime scene demonstrated that
two firearms had been used. The cartridges found inside Matthews’s apartment and
just outside of her door had been fired from one firearm, but the cartridges found in
the stairwell on the ground floor and on the steps had been fired from another.
{¶7} Several weeks after the shootings, Kennedy told Derrell Anderson
about “Bedrock’s” shooting, when they were both passengers in the car of man
named Jaleel. Anderson and Jaleel had picked up Kennedy from a parking lot in
Walnut Hills and were taking him to Burnet Avenue in Avondale because Kennedy
said he needed to escape from “guys” in the Walnut Hills neighborhood who were
after him because he had killed Matthews. Kennedy explained to Anderson the
details of the crime, including that he had shot Matthews as she tried to shut the
door on him, that he had taken the gambling money, that he had shot another man
inside the apartment, and that “JayDee” had shot someone in the face on the stairs.
{¶8} While in the Hamilton County Justice Center, Kennedy told two
inmates, Tobias Johnson, who knew Matthews, and Jermaine Beard, about his role
in the gambling-apartment shootings and provided the details of the crime. Johnson
testified that Kennedy had told him that Thompson had been gambling at
Matthews’s apartment, and that Thompson had set up the robbery, because he owed
3
OHIO FIRST DISTRICT COURT OF APPEALS
Kennedy a favor for previously turning him onto a “lick.” Kennedy said that
Matthews had come to the door after he knocked on it, and that he had shot her
when she tried to shut it. He also admitted that he had shot Turnbow because he
tried to run, and that he had “robbed everybody.” Kennedy credited his accomplice
Thompson with shooting a man in the face on the stairs as they were leaving.
{¶9} Beard testified that Kennedy had told him that he had pretended to
be “JayDee” to enter a gambling apartment, that he had shot the lady who opened
the door when she tried to close it on him, and that he had shot a man named
“Rodney” and had taken about $1500 from him.
B. Vine-Street Shootings
{¶10} On June 23, 2006, Dwayne Stuckey was shot on Vine Street in the
Over-the-Rhine area of Cincinnati. The shooting began in the street, but ended
inside a Cricket Store, which was located next to a Kroger store. Stuckey was shot six
times and eventually died from his wounds. Phillip Simmons, a bystander on the
street, was injured by a stray bullet.
{¶11} Officer Shultz, on bike patrol nearby, heard the gunfire and rushed to
the scene. He approached Stuckey and asked him who had shot him. After initially
declining to answer, Stuckey identified his shooter as “Midnight” and “Midnight
from Burnet.”
{¶12} Limited video surveillance from the Cricket Store captured the image
of the shooter, who appeared to be very dark complected. When questioned by the
police about the crime, Kennedy, who was described as very dark complected,
acknowledged that his nickname was “Midnight.” He also admitted that Stuckey had
previously robbed him. Kennedy was arrested in October 2006 on Burnet Avenue.
While in the justice center, he told Major Paige that he had chased down and shot
Stuckey on Vine Street. Paige also learned from Kennedy that a stray bullet had
struck a bystander.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Kennedy also admitted to shooting Stuckey to another inmate, Dante
Robb. According to Robb, Kennedy explained that because Stuckey had robbed him
a few days earlier, when he saw Stuckey leaving a Kroger store, he started after him
and shot at him, striking both Stuckey and a bystander. Both Robb and Paige
testified at trial that they knew Kennedy as “Midnight.”
II. Procedure
{¶14} The state originally indicted Kennedy for the Vine-Street shootings
in 2007, but the prosecutor dismissed that indictment, apparently upon discovering
a defect. In July 2011, the prosecutor then joined the allegations from both
shootings, resulting in a single, 15-count indictment for both incidents.
{¶15} The gambling-apartment charges, Counts 1 through 9, included
aggravated-felony-murder and murder counts with firearm specifications for the
death of Janie Matthews, aggravated-felony-murder and murder counts with firearm
specifications for the death of Rodney Turnbow, felonious-assault counts with
firearm specifications for Deandre Thomas’s injuries, an aggravated robbery count
with firearm specifications for the theft of money from Matthews, Turnbow, and the
other card players, including Dumas, and two counts of having weapons under a
disability.
{¶16} The Vine-Street-related charges, Counts 10 through 15, included
purposeful-murder and felony-murder counts with firearm specifications for the
death of Dwayne Stuckey, two felonious-assault counts with firearm specifications
for Phillip Simons’s injuries, and two counts of having weapons under a disability.
{¶17} Prior to trial, Kennedy moved to sever the Vine-Street offenses from
the gambling-apartment offenses. The state opposed the motion, and the trial court
overruled it.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} At that time, Kennedy also orally moved to exclude Officer Schultz
from testifying to Stuckey’s statement identifying his assailant as “Midnight” and
“Midnight from Burnet.” The trial court overruled the motion.
{¶19} During trial, Kennedy sought to discredit the state’s evidence by
arguing that Anderson, Johnson, Beard, Robb, and Paige were only seeking to
receive favorable consideration from the state with respect to their own criminal
cases. And in his defense, Kennedy presented testimony from several inmates who
had been locked up in the justice center with him, and who denied that Kennedy had
talked about his cases to anyone, including the state’s witnesses.
{¶20} At the conclusion of the evidence, the jury found Kennedy guilty of
all charges.
III. Assignments of Error
A. Misjoinder and Prejudicial Joiner
{¶21} In his first assignment of error, Kennedy argues that the trial court
erred by overruling his motion to sever.
{¶22} Kennedy moved to sever the offenses related to the Vine-Street
shootings from the offenses related to the gambling-apartment shootings. He
claimed that Crim.R. 8(A) did not allow the joiner of those offenses in the same
indictment, and that, if proper, the joinder would be prejudicial as contemplated by
Crim.R. 14. He argued that the failure to sever would be prejudicial because the jury
was likely to rely on evidence related to the offenses in one incident to infer
Kennedy’s guilt for the offenses related to the other incident. The state argued that
joiner of the “homicides” was appropriate, and that severance was not appropriate,
because Kennedy had failed to show prejudice from the joinder. The trial court
overruled the motion.
{¶23} Crim.R. 8(A) pertains to the joinder of offenses in a single
indictment. This rule provides that “two or more offenses may be charged in the
6
OHIO FIRST DISTRICT COURT OF APPEALS
same indictment” if the offenses are (1) “of the same or similar character; (2) “based
on the same act or transaction;” (3) “based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan,” or (4) “part
of a course of criminal conduct.” Crim.R. 8(A). Like R.C. 2941.04, Crim.R. 8
attempts to set the limits of permissible joinder.
{¶24} Where joinder is not appropriate under Crim.R. 8(A) because the
offenses do not meet at least one of the four joinder requirements, the trial court
should grant a motion to sever, even in the absence of prejudice. See State v.
Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992) (holding that “if similar
offenses are properly joined pursuant to Crim.R. 8(A), a defendant can still move to
sever the charges pursuant to Crim.R. 14 if their consolidation will prejudice his or
her rights”); see also State v. Atkinson, 4 Ohio St.2d 19, 21-22, 211 N.E.2d 665 (1965)
(applying R.C. 2941.04), limited in part on other grounds, State v. Minneker, 27
Ohio St.2d 155, 271 N.E.2d 821 (1971). The issue involves a question of law, which
we review de novo. See Schaim at 59-63.
{¶25} Kennedy maintains that the Vine-Street offenses were misjoined
under Crim.R. 8 with the gambling-apartment offenses. The state does not address
the requirements of Crim.R. 8. Nonetheless, after our review of the record, we find
that joinder of the offenses was permitted under Crim.R. 8(A), even though the
offenses were not based on the same transaction or related transactions.
{¶26} The Ohio Supreme Court has repeatedly held that the joinder of
multiple offenses against the same defendant in a single trial is encouraged. State v.
Williams, 73 Ohio St.3d 153, 158, 652 N.E.2d 721 (1995); State v. Torres, 66 Ohio
St.2d 340, 343, 421 N.E.2d 1288 (1981). Under Crim.R. 8(A), offenses that are “of
the same or similar character” may be joined. See State v. Coleman, 1st Dist.
Hamilton No. C-900872, 1992 Ohio App. LEXIS 1046 (Mar. 11, 1992).
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} The phrase “of the same or similar character” has been given a broad
definition. See Schaim, 65 Ohio St.3d at fn. 6, 600 N.E.2d 661 (rejecting defendant’s
request for a narrow definition in a case involving charges of forcible rape, sexual
imposition, and gross sexual imposition against three different victims.)
{¶28} Kennedy claims that the incidents were not of the same or of a
similar character. But both incidents resulted in charges alleging that Kennedy had
purposely caused the death of another (Counts 1, 3, and 10), that he had caused the
death of another while committing felonious assault (Counts 2, 4, and 11), that he
had knowingly caused serious physical harm and had knowingly caused physical
harm by means of a firearm (Counts 5, 6, 12, and 13), and that he had had weapons
under a disability (Counts 8, 9, 14, and 15). And both sets of charges contained the
same firearm specifications.
{¶29} Although the two incidents did not involve the exact same offenses—
the gambling-apartment shootings also involved a robbery, which affected several of
the counts—the offenses stemming from the two incidents were of a similar
character, involving acts of violence committed with a firearm. Accordingly, we hold
that in this case the similarities justified joinder in the first instance under Crim.R.
8(A).
{¶30} The joining of offenses because they are of a same or similar
character, however, creates a greater risk of prejudice to a defendant. Schaim, 65
Ohio St.3d at 58, 600 N.E.2d 661. Joinder may not be appropriate, even though the
offenses are of the same or similar character, “when the offenses are unrelated and
the evidence as to each is very weak.” Torres, 66 Ohio St.2d at 343, 421 N.E2d 1288.
See Schaim at 62; State v. Echols, 128 Ohio App.3d 677, 696, 716 N.E.2d 728 (1st
Dist.1998) (holding that the trial court erred by failing to sever counts where the
evidence of the offenses failed to demonstrate a modus operandi, and where the
8
OHIO FIRST DISTRICT COURT OF APPEALS
likelihood that the jury would misuse the evidence was substantial); State v. Garrett,
12th Dist. Clermont No. CA2008-08-075, 2009-Ohio-5442.
{¶31} Crim.R.14 provides relief from prejudicial joinder. A defendant
requesting separate trials of multiple charges must affirmatively demonstrate
prejudice by providing the trial court with adequate information so that the trial
court can “weigh the considerations favoring joinder against the defendant’s right to
a fair trial.” Torres, 66 Ohio St.2d at syllabus, 421 N.E.2d 1288.
{¶32} The state may rebut the defendant’s claim of prejudice in two ways.
The state may argue that it could introduce evidence relevant to one offense in the
trial of the other offense as other-acts evidence. Or the state may show that the
evidence relevant to each offense joined is “simple and direct.” State v. Lott, 51 Ohio
St.3d 160, 163, 555 N.E.2d 293 (1990).
{¶33} We review the trial court’s determination of prejudice and its denial
of separate trials under an abuse of discretion standard. See Torres, 66 Ohio St.2d
at syllabus, 421 N.E.2d 1288.
{¶34} Kennedy claims prejudice arose from the joinder because the
evidence of the multiple murders and assaults, when presented in a single trial,
created an accumulation of evidence that allowed the state to portray him as a gun-
toting, violent individual, and that allowed the jury to infer his guilt for the offenses
on this improper portrayal, despite the state’s presentation of weak evidence.
{¶35} To negate Kennedy’s claim of prejudice, the state contends that the
evidence of each shooting was simple and direct, and that the jury could easily
segregate the proof relevant to each. We agree. The jury could easily segregate the
evidence from each incident. The facts of each were uncomplicated and
distinguishable, and the state referred to the evidence in support of each shooting in
that manner. And the evidence was amply sufficient to sustain the verdicts related to
each incident, whether or not the counts were tried together.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} Under these circumstances, Kennedy has failed to demonstrate error
in the trial court’s denial of his motion to sever the gambling-apartment offenses
from the Vine-Street offenses. Accordingly, we overrule the first assignment of error.
B. Dying Declaration
{¶37} In his second assignment of error, Kennedy contends that the trial
court erred by allowing Officer Schultz to testify as to what Stuckey said about who
had shot him, in violation of the rules of evidence and in violation of his right,
secured by the Sixth Amendment to the United States Constitution, to confront
witnesses against him.
{¶38} Before we begin our analysis, we note that our record does not
contain Kennedy’s written motion for the exclusion of the evidence or the transcript
from the evidentiary hearing on that matter. Kennedy orally moved pretrial for the
exclusion of Stuckey’s statements, claiming that they were inadmissible under
Evid.R. 804(B)(2), and that their admission would violate his right of confrontation.
He mentioned at that time that he had filed a written motion, but he was apparently
relying on the written motion in limine filed in the dismissed case, which the trial
court had overruled after an evidentiary hearing upon a determination that the
statements were dying declarations. The trial court in this case overruled the oral
motion without holding a new evidentiary hearing, based on the parties’ summary of
the evidence at the prior hearing and their arguments. At that time, the state argued
that the court had correctly determined that Stuckey’s statements to Officer Schultz
were “dying declarations,” and that they thus fell under an exception to the hearsay
rule. Kennedy did not object to Officer Schultz’s testimony at trial.
{¶39} We address Kennedy’s claim without deciding whether, under these
circumstances, Kennedy waived all but plain error. And we review the assignment of
error based on the record before us, which does not contain Kennedy’s written
motion in limine or the transcript of the evidentiary hearing in the dismissed case.
10
OHIO FIRST DISTRICT COURT OF APPEALS
1. Evid.R. 804(B)(2)
{¶40} Evid.R. 804(B)(2) sets forth the hearsay exception for “dying
declarations.” The rule provides that “a statement made by a declarant, while
believing that his or her death was imminent, concerning the cause or circumstances
of what the declarant believed to be his or her impending death,” is not excluded by
the hearsay rule in a prosecution for homicide or in a civil case, if the declarant is
unavailable as a witness.
{¶41} To fall under the hearsay exception set forth in Evid.R. 804(B)(2)
for dying declarations, the evidence must show that the deceased’s statements were
made under a sense of impending death that excluded from the mind of the dying
person all hope or expectation of recovery. See, e.g., State v. Ray, 189 Ohio App.3d
292, 2010-Ohio-2348, 938 N.E.2d 378, ¶ 40 (8th Dist.); State v. Washington, 1st
Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 21; State v. Ross, 7th Dist. Nos. 96-
CA-247 and 96-CA-251, 1999 Ohio App. LEXIS 4859 (Oct. 12, 1999), cited in State v.
McGee, Mahoning Case No. 07-MA-137, 2009-Ohio-6397, ¶ 33.
{¶42} The declarant is not required to state that he believes that he will not
survive; rather, the necessary state of mind can be inferred from circumstances at the
time of the declaration. Ross, supra, citing State v. Kotowicz, 55 Ohio App. 497, 501,
9 N.E.2d 1003 (6th Dist.1937), quoting Shepard v. United States, 290 U.S. 96, 100,
54 S.Ct. 22, 78 L.Ed. 196 (1933).
{¶43} According to Kennedy, the evidence at trial failed to demonstrate
that Stuckey was under a sense of impending death when he made the statements
identifying his shooter as “Midnight” and “Midnight from Burnet.” The state
maintains that the statements were properly admitted under Evid.R. 804(B)(2) as
dying declarations. We agree with the state.
{¶44} When Officer Schultz responded to the scene of the Vine-Street
shooting, a bloodied Stuckey was laying on the floor of the Cricket Store. Stuckey
11
OHIO FIRST DISTRICT COURT OF APPEALS
was conscious, but he was moaning and gasping in pain from receiving six gunshot
wounds, including wounds to his left hip, right buttocks, right arm, right calf, left
thigh, and torso. This last wound was caused when a bullet entered his back and
perforated his lung before exiting out of his chest.
{¶45} At first, Stuckey declined to tell the officer who had shot him. Officer
Schultz pressed Stuckey for a statement as he watched Stuckey’s physical condition
deteriorate and his coloring fade.
{¶46} Officer Schultz asked, “You sure you don’t want to tell me? You are
laying on the floor, you have hole in your chest and you are turning gray. Maybe you
will live and take care of this yourself, but if you are going to die, you can give me the
information, tell me who shot you, where the gun is, where he is at.” Responding,
Stuckey shrugged his shoulders and then said, “Midnight.” When Officer Schultz
asked, “Who is Midnight?,” Stuckey replied, “Midnight from Burnet.”
{¶47} Stuckey became unconscious shortly afterwards, and paramedics
transported him to the hospital, where he later died from “hemorrhagic shock due to
hemothorax due to gunshot wound of torso.”1
{¶48} Based on the circumstances at the time of the statements, we
conclude that Stuckey believed his death was imminent. Stuckey had suffered
multiple gunshot wounds, and he was visibly struggling with his vital functions.
Moreover, Officer Schultz essentially told Stuckey that he was going to die, and that if
Stuckey believed so, then he needed to identify his assailant. Stuckey identified his
assailant, demonstrating his belief of impending death.
{¶49} Kennedy also suggests that Stuckey’s statements did not qualify as
dying declarations because Stuckey did not pass away immediately. Traditionally, the
1 The state presented the coroner’s testimony by a videotaped deposition. Although that
testimony was played to the jury, it was not transcribed by the court reporter or filed with the
court under the case numbered B-1104558. But the coroner’s report on the cause of death was
admitted as an exhibit at trial and is a part of our record.
12
OHIO FIRST DISTRICT COURT OF APPEALS
length of time elapsing between the declaration and death is an element to be
considered in whether the statement was made under impending belief of death.
Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917 (1892); Ray, 189
Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378, ¶ at 42. But “ ‘it is the
impression of almost immediate dissolution, and not the rapid succession of death,
in point in fact, that renders the testimony admissible.’ ” Mattox at 151, quoting 1
Greenleaf, Evidence 15th Ed. Section 156, 157, 158. “Despair may even be gathered,
though the period of survival outruns expectations.” Sheppard v. United States, 290
U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933).
{¶50} While Kennedy suggests that Stuckey lived for 36 hours, the medical
records unequivocally demonstrate that Stuckey died about 12 hours later. Further,
Officer Schultz’s testimony shows that Stuckey made his declarations only after
determining that he would soon die and would not be able to avenge his killer, a
reasonable conclusion under the circumstances, where he had been shot six times
and was struggling to live. Stuckey became unconscious shortly after making the
statements and died in surgery. Under these facts, we conclude that Stuckey made
the declarations under a belief of impending death, even though he died 12 hours
later.
{¶51} Because Stuckey’s statements to Officer Schultz identifying his
assailant were made under a belief of impending death and were offered in a
prosecution for homicide, the statements qualified as dying declarations under
Evid.R. 804(B)(2).
{¶52} This case is distinguishable from State v. Woods, 47 Ohio App.2d
144, 352 N.E.2d 598 (9th Dist.1972), on which Kennedy relies. In Woods, the court
held that the record did not support a finding that the victim had sensed his death
was impending, and that he had abandoned all hope of recovery, even though the
victim had suffered a mortal gunshot wound and was in critical condition at the time
13
OHIO FIRST DISTRICT COURT OF APPEALS
of his declaration. Unlike the victim in Woods, Stuckey was moaning and gasping in
pain and had resisted providing the information about his assailant until he was
informed of the severity of his condition. Further, Officer Schultz believed that
Stuckey thought he was dying, unlike in Woods, where the emergency room surgeon
testified that he did not believe that the victim had believed that he would die and
that the victim had only complained about leg pain. Id. at 146-147. In light of these
differences, we are not persuaded that Woods requires a different result.
2. Confrontation-Clause Analysis
{¶53} Kennedy additionally argues that the admission of Stuckey’s
statement to Officer Schultz violated his rights under the Confrontation Clause of the
Sixth Amendment. The Confrontation Clause prohibits the admission of testimonial
statements of a witness who did not testify at trial, unless he was unavailable to
testify and the defendant had had a prior opportunity for cross-examination.
Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004);
Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
{¶54} In Crawford, the Supreme Court substantially altered prior case
law that had generally permitted the admission of statements that fell within hearsay
exceptions based upon unavailability, provided that the statements bore significant
indicia of reliability. The Crawford court rejected that prior case law as insufficient
to protect the right to confrontation set forth in the Sixth Amendment’s
Confrontation Clause, which incorporated the right of confrontation as it existed “at
common law, admitting only those exceptions established at the time of the
founding.” Crawford at 54.
{¶55} The Crawford court observed, however, that dying declarations
were recognized at the common law as an exception to the right of confrontation. Id.
at fn. 6.
14
OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} After the Supreme Court’s decision in Crawford, this court, in State
v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502, sua sponte reviewed
whether statements admitted as dying declarations under the hearsay exception set
forth in Evid.R. 804(B)(2), an exception based on the unavailability of the witness,
violated the Confrontation Clause and created either preserved or plain error in that
case. We stated that Crawford did not appear to bar the admission of the challenged
statements because they were not testimonial, and the Confrontation Clause is
inapplicable to, and does not prohibit the use of, nontestimonial statements. Id. at ¶
75. We also noted that the Crawford court had recognized the common-law hearsay
exception for dying declarations and had “left unanswered the question whether its
analysis applies to testimonial dying declarations.” Id.
{¶57} We cited Nix with approval in State v. Washington, 1st Dist.
Hamilton No. C-090561, 2010-Ohio-3175, ¶ 33, when rejecting the defendant’s claim
that the admission of the victim’s statements violated his Confrontation Clause
rights. We held that the statements, which were admissible under the Evid.R.
804(B)(2) exception for dying declarations, were not testimonial, and that their
admission did not violate the Confrontation Clause. See also State v. Duncan, 8th
Dist Cuyahoga No. 87220, 2006-Ohio-5009, ¶ 24.
{¶58} In this case, neither party has analyzed whether Stuckey’s
statements were “testimonial” under the relevant precedent, and we refrain from
making that determination. Instead, we hold that the admission of a statement that
qualified as a dying declaration under the common law, including one that is
testimonial, does not conflict with the Sixth Amendment and does not implicate
Crawford. Further, we hold Stuckey’s statements to Officer Schultz qualified as
dying declarations under the common law. Thus, the admission of the statements
did not violate Kennedy’s Confrontation Clause rights, and a determination of
whether the statements are testimonial is unnecessary.
15
OHIO FIRST DISTRICT COURT OF APPEALS
{¶59} The Ohio Supreme Court has not addressed whether Crawford
altered the analysis concerning the admission of dying declarations when challenged
as a Confrontation Clause violation. But the court recognized long before Crawford,
and long before the promulgation of Ohio Evid.R. 804(B)(2), that dying declarations
had been recognized at common law as an exception to the constitutional right of
confrontation. See State v. Kindle, 47 Ohio St. 358, 361, 24 N.E. 485 (1890);
Summons v. State, 5 Ohio St. 325, 342 (1856).
{¶60} And several other state supreme courts have expressly held that
Crawford does not apply to the admission of a statement recognized as a dying
declaration under the common law, even if it is testimonial. See, e.g., People v.
Monterroso, 34 Cal.4th 743, 764, 22 Cal. Rptr.3d 1, 101 P.3d 956 (2004);
Commonwealth v. Nesbitt, 452 Mass. 236, 249, 892 N.E.2d 299 (2008) (“The
Confrontation Clause ‘is most naturally read as a reference to the right of
confrontation at common law,’ ” which recognized dying declarations as an exception
to the right of confrontation); State v. Jones, 287 Kan. 559, 569, 197 P.3d 815 (2008)
(“[W]e are confident that, when given the opportunity to do so, the Supreme Court
would confirm that a dying declaration may be admitted into evidence, even when it
is testimonial and unconfronted.”); Harkins v. State, 122 Nev. 974, 982, 143 P.3d
706 (2006) (“[B]ecause dying declarations were recognized at common law as an
exception to the right of confrontation, they should continue to be recognized as an
exception.”).
{¶61} The California Supreme Court, in Monterroso, reasoned as follows:
Dying declarations were admissible at common law in
felony cases, even when the defendant was not present
at the time the statement was taken. (Peake, Evidence
[3d ed. 1808] p. 64). In particular, the common law
allowed “ ‘the declaration of the deceased, after the
mortal blow, as to the fact itself, and the party by whom
it was committed,’ ” provided that “ ‘the deceased at the
time of making such declarations was conscious of his
danger.’ ” (King v. Reason [K.B. 1722] 16 How. Str. Tr. 1,
16
OHIO FIRST DISTRICT COURT OF APPEALS
24-25.) To exclude such evidence as violative of the
right to confrontation “would not only be contrary to all
precedents in England and here, acquiesced in long
since the adoption of these constitutional provisions, but
it would be abhorrent to the sense of justice and regard
for individual security and public safety which its
exclusion in some cases would inevitably set at naught.
But dying declarations, made under certain
circumstances, were admissible at common law, and
that common law was not repudiated by our constitution
in the clause referred to, but adopted and cherished.”
(State v. Houser [Mo. 1858] 26 Mo. 434, 438; accord,
Mattox v. United States (1895), 156 U.S. 237, 243-244,
39 L.Ed. 409, 15 S.Ct. 337, (from time immemorial they
have been treated as competent testimony, and no one
would have the hardihood at this day to question their
admissibility”.)
Monterroso at 764-765.
{¶62} The Monterroso court then concluded:
Thus, if, as Crawford teaches, the confrontation
clause “is most naturally read as a reference to the right
of confrontation at common law, admitting only those
exceptions established at the time of the founding”
(Crawford, supra, 124 S.Ct. at 1365, citing Houser,
supra, 26 Mo. at 433-435), it follows that the common
law pedigree of the exception for dying declarations
poses no conflict with the Sixth Amendment.
Id. at 765.
{¶63} More recently, the United States Supreme Court has reiterated
Crawford’s acknowledgement of authority that the Sixth Amendment incorporates
an exception for testimonial dying declarations. See Giles v. California, 554 U.S.
353, 358-359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) (“We have previously
acknowledged that two forms of testimonial statements were admitted at the
common law even though they were unconfronted[;] [t]he first of these were
declarations made by a speaker who was both on the brink of death and aware that
he was dying.”); Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1151, 179 L.Ed.2d
93 (2011), fn. 1, (“[I]n Crawford * * * we first suggested that dying declarations, even
17
OHIO FIRST DISTRICT COURT OF APPEALS
if testimonial, might be admissible as a historic exception to the Confrontation
Clause.”).
{¶64} In light of this case law, we hold that the Sixth Amendment
incorporates an exception for “the common law pedigree” of dying declarations, even
testimonial ones, and that Crawford did not alter this rule. See Monterreso, 34
Cal.4th at 765, 22 Cal. Rptr.3d 1, 101 P.3d 956.
{¶65} Next, we determine whether Stuckey’s statements met the
constitutional standard for dying declarations, notwithstanding that we have already
held that his statements qualified as dying declarations under Evid.R. 804(B)(2).
See generally, Nicolas, ‘I’m Dying to Tell You What Happened’: The Admissibility of
Testimonial Dying Declarations Post-Crawford, 37 Hastings Const.L.Q. 487 (Spring
2010) (examining how to define the phrase “dying declarations” as a constitutional
matter.).
{¶66} This court did not examine this issue in Nix or Washington, and
Kennedy has not presented any argument that the Evid.R. 804(B)(2) exception for a
dying declaration deviates from the common-law exception recognized when the
United States Constitution was drafted.
{¶67} Evid.R. 102 expressly requires an Ohio court to apply the
“principles of the common law of Ohio” unless the evidence rule “clearly indicates
that a change is intended.” Although we note that Evid.R. 804(B)(2) expands the
common-law rule by allowing the exception for dying declarations in civil cases, see
Staff Note to Rule 804(B)(2), the rule appears otherwise to comport with the
common law definition of “dying declarations” at the time of the federal
Constitution.
{¶68} In Robbins v. State, 8 Ohio St. 131, 163 (1857), the Ohio Supreme
court recognized as settled law that in a prosecution for homicide, a deceased-
declarant’s statement about the cause or circumstances of his or her death passed
18
OHIO FIRST DISTRICT COURT OF APPEALS
muster as a dying declaration under Ohio’s Confrontation Clause only if the court
was satisfied that the statement had been “made under a sense of impending death,
excluding from the mind of the dying person all hope or expectation of recovery.”
(Emphasis in original). See Montgomery v. State, 11 Ohio 424, 425 (1842) (holding
that the court must determine “that the deceased not only made the declarations just
before death, and while in extremis, but also that he was conscious of his true
condition”).
{¶69} Ohio’s “confrontation clause,” provides that “[i]n any trial, in any
court, the party accused shall be allowed * * * to meet the witnesses face to face.”
Article I, Section 10, Ohio Constitution. This right is understood to encompass the
right of confrontation as recognized by the Sixth Amendment to the United States
Constitution. See Summons, 5 Ohio St. at 340. In Summons, the Ohio Supreme
Court described Ohio’s confrontation clause as “a constitutional guaranty of one of
the great fundamental principles well established, and long recognized at common
law, both in England and this country.” Id. The court then confirmed that “the
assertion of it in the fundamental law of the State, was designed neither to enlarge
nor curtail it in its operation, but to give it permanency, and secure it against the
power of change or innovation.” Id.
{¶70} We have already held that Stuckey’s statement was made under an
impending sense of death, without any hope of recovery. Thus, we conclude that
Stuckey’s statements, offered in Kennedy’s prosecution for homicide and identifying
Kennedy as his assailant, qualified as dying declarations under the common law. See
Robbins, 8 Ohio St. at 163. Therefore, we hold that the admission of these
statements did not conflict with Kennedy’s Sixth Amendment right to confrontation.
{¶71} Accordingly, we overrule the second assignment of error.
19
OHIO FIRST DISTRICT COURT OF APPEALS
C. Other-Acts Evidence
{¶72} In his third assignment of error, Kennedy contends that the trial
court’s admission of other-acts testimony, in violation of Evid.R. 404(B), denied him
a fair trial.
{¶73} Specifically, Kennedy challenges the testimony of jail-inmate Tobias
Johnson, who testified about conversations he had had with Kennedy while
incarcerated with him at the justice center. After Johnson related how Kennedy had
described the Matthews-Turnbow shooting, the prosecutor then asked, “[Was] there
ever a time when you observed the defendant either talking to you or other people
about other killings that he had been involved in?” Defense counsel objected on the
grounds that the question was eliciting other-acts testimony. Anticipating Johnson’s
response, the prosecutor stated that the testimony would demonstrate Kennedy’s
intent to kill Matthews, Turnbow, and Stuckey. The trial court overruled the
objection. Johnson then testified that Kennedy would get keyed up by bragging that
he was a serial killer and “got bodies on his belt.”
{¶74} Evid.R. 404(B) precludes the admission of evidence of other crimes
offered to prove the character of an accused in order to show that the accused acted
in conformity with that character. But the rule does not preclude the admission of
that evidence for other purposes. See Evid.R. 404(B); see also R.C. 2945.59.
{¶75} In evaluating the admissibility of other-acts evidence, the trial court
should first “consider whether the other act evidence is relevant to making any fact
that is of consequence to the determination of the action more or less probable than
it would be without the evidence.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-
5695, 983 N.E.2d 1278, ¶ 20, citing Evid.R. 401. Next, the court should determine if
“evidence of the other crimes, wrongs, or acts is presented to prove the character of
the accused in order to show activity in conformity therewith or whether the other
act evidence is presented for a legitimate purpose, such as those stated in Evid.R.
20
OHIO FIRST DISTRICT COURT OF APPEALS
404(B).” Id. Finally, the court should “consider whether the probative value of the
other acts evidence is substantially outweighed by the danger of unfair prejudice.”
Id., citing Evid.R. 403.
{¶76} The admission of other-acts evidence under Evid.R. 404(B) rests
within the broad discretion of the trial court. State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407, 972 N.E.2d 528, syllabus; Williams at ¶ 17. We review the trial
court’s decision under an abuse-of-discretion standard. Morris, supra.{¶77} “ ‘Abuse of discretion’ has been described as including a ruling that
lacks a “ ‘sound reasoning process.’ ” Morris at ¶ 14, citing AAAA Ents., Inc. v. River
Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990). Our review is a deferential one; it is not enough for this court to determine
that the trial court abused its discretion simply because we may have reached a
different conclusion. Id. Further, we should not disturb an evidentiary decision “in
the absence of an abuse of discretion that created material prejudice.” State v. Diar,
120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.
{¶78} In this case, the challenged testimony passes the first step of the
three-step analysis. Kennedy was charged with purposefully causing the death of
Matthews, Turnbow, and Stuckey. Thus, the state was charged with proving that
Kennedy had intended to kill all three, and that the deaths were not, as Kennedy
argues in the case of Matthews and Turnbow, the result of recklessness. That
Kennedy bragged about being a killer tended to show that he had intended to kill
them.
{¶79} The testimony also passes the second step of the analysis. Contrary
to Kennedy’s assertion, the state used the testimony for the specific purpose of
showing that Kennedy, who bragged about the killings, had intended to kill his
victims. In closing argument, the prosecutor told the jury that Kennedy’s objection to
21
OHIO FIRST DISTRICT COURT OF APPEALS
Johnson’s anticipated testimony was overruled because the testimony was
admissible to prove what Kennedy “was thinking about” when he shot his victims.
{¶80} The final step we consider is whether the probative value of the
other-acts evidence is substantially outweighed by the danger of unfair prejudice.
Kennedy was charged with three counts of purposeful murder, and the state had
evidence to support those charges. The fact that Kennedy bragged about being a
serial killer after the three murders was probative of his intent to kill his shooting
victims. There was no danger of unfair prejudice in this case because the prosecutor
told the jurors the specific purpose for which they could use the evidence. Further,
the defense argued that Kennedy’s bragging was only “puffing,” a necessary part of
survival in the “murder pod.”
{¶81} Under these circumstances, we conclude that the trial court did not
abuse its discretion by allowing the challenged other-acts testimony. Accordingly, we
overrule the third assignment of error.
D. Sufficiency-and Weight-of-the-Evidence Claims
{¶82} In his fourth assignment of error, Kennedy challenges the
sufficiency of the evidence to support his convictions, as well as the weight given it by
the jury.
{¶83} The test for the sufficiency of the evidence required to sustain a
conviction is whether, after viewing all the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-
Ohio-791, 842 N.E.2d 996, ¶ 36, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In deciding if the evidence was sufficient,
we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as
22
OHIO FIRST DISTRICT COURT OF APPEALS
both are functions reserved for the trier of fact. See State v. Williams, 197 Ohio
App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.).
{¶84} When reviewing a weight-of-the-evidence question, an appellate
court must review the entire record, weight the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
1. Gambling-Apartment Shootings—Counts 1, 3, 5, 7, and 8
{¶85} With respect to the gambling-apartment shootings, Kennedy was
convicted of aggravated murder for purposely causing the death of Matthews, in
violation of R.C. 2903.01(B), with a three-year firearm specification (Count 1),
aggravated murder for purposely the death of Turnbow in violation of R.C.
2903.01(B) (Count 3), felonious assault for knowingly causing physical harm to
Thomas in violation of R.C. 2903.11(A)(1) (Count 5), aggravated robbery for the theft
of money facilitated by the use of a deadly weapon with respect to Dumas and the
other occupants, in violation of R.C. 2911.01(A)(1) (Count 7), and having weapons
under a disability in violation of R.C. 2923.13(A)(2) (Count 8). The state proceeded
against Kennedy as an accomplice with respect to the felonious assault of Thomas.
{¶86} The evidence at trial met the test of sufficiency. Dumas testified that
he, Matthews, Turnbow, and the others present at Matthews’s apartment were
robbed at gun point during a card game that Thompson had previously participated
in. Beard testified that Kennedy had told him that Jaydee Thompson had turned him
“onto a lick at a gambling apartment,” and that he had shot the woman who had
answered the door and a man named “Rodney” (Turnbow), and then took $1500 out
of Rodney’s pocket.
23
OHIO FIRST DISTRICT COURT OF APPEALS
{¶87} Tobias Johnson, another witness for the state, testified that
Kennedy had admitted to committing these offenses, including shooting Matthews
and Turnbow, after going to Matthews’s home to commit a robbery. According to
Johnson, Kennedy also told him that Thompson had shot Thomas in the face on the
staircase as they fled. Derrell Anderson provided testimony concerning similar
admissions by Kennedy. Thomas, who knew Thompson, testified that he had
recognized Thompson as his shooter.
{¶88} Finally, Kennedy stipulated to having the prior convictions that
created the disability in support of the weapons offense that resulted from the
gambling-apartment shootings.
{¶89} In addition to his general challenge to the sufficiency of the
evidence, Kennedy specifically argues that the state failed prove that he had
purposely caused the deaths of Matthews and Turnbow. We disagree.
{¶90} Kennedy was convicted of aggravated felony murder under R.C.
2903.01(B), which proscribes “purposely caus[ing] the death of another * * * while
committing or attempting to commit, or while fleeing immediately after committing
or attempting to commit, * * * aggravated robbery.” A person acts purposely when
he specifically intends to cause a certain result. See R.C. 2901.22(A); State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 188. Intent to kill
may be proved by inference and “may be inferred in a[n] [aggravated] felony-murder
when the offense and the manner of its commission would be likely to produce
death.” State v. Gardner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995); see State v.
Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 28, citing State v. McCoy,
1st Dist. Hamilton No. C-090559, 2010-Ohio-5810, ¶ 36.
{¶91} Kennedy claims that the evidence was insufficient to demonstrate a
purpose to kill Matthews because there was some evidence that she had been shot
through the door as she was opening it, instead of closing it. But whether Kennedy
24
OHIO FIRST DISTRICT COURT OF APPEALS
shot Matthews when she was closing or opening the door is irrelevant. Either way,
he had to know that someone was responsible for the movement of the door, and that
that person was standing on the other side of it, blocking his entrance. And
Kennedy’s bullet, fired at fairly close range, struck Matthews squarely in her chest.
{¶92} Kennedy also suggests that Turnbow’s death was not a purposeful
killing, just the result of an errant bullet. But Kennedy shot Turnbow in the head, at
what had to have been fairly close range in Matthews’s small apartment, and there
was evidence that Kennedy had shot Turnbow because he tried to run.
{¶93} Further, Johnson testified that Kennedy had bragged while
incarcerated about being a killer. This evidence, along with the evidence of the
manner of the shootings, when viewed in the light most favorable to the prosecution,
was sufficient evidence from which the trier of fact could have reasonably concluded
that Kennedy had specifically intended to cause death. See Tibbs, 2011-Ohio-6716 at
¶ 37.
{¶94} In sum, construing the evidence in the light most favorable to the
prosecution, any rational juror could have concluded beyond a reasonable doubt that
Kennedy had committed the offenses related to the gambling-apartment shootings,
including the aggravated felony murders of Matthews and Turnbow, the felonious
assault of Thomas, the aggravated robbery of Dumas and the other gambling
participants in Matthews’s apartment, and the offense of having weapons under a
disability.
2. Vine-Street Shootings—Counts 10, 12, and 14
{¶95} With respect the Vine-Street shootings, Kennedy was convicted of
murder in violation of R.C. 2903.02(A), with a three-year firearm specification, for
purposely causing the death of Stuckey (Count 10), felonious assault in violation of
R.C. 2901.11(A)(1), for knowingly causing serious physical harm to Simmons (Count
25
OHIO FIRST DISTRICT COURT OF APPEALS
12), and having weapons under a disability in violation of R.C. 2913.13(A)(2) (Count
14).
{¶96} Officer Schultz testified that had he arrived at the scene of the
shooting on Vine Street shortly after hearing shots fired. He learned that a
bystander, Simmons, had been shot on the street, and he found Stuckey on the floor
of a Cricket Store with multiple bullet wounds. Stuckey identified his shooter first as
“Midnight” and then as “Midnight from Burnet.” Several witnesses at trial testified
that Kennedy was known as “Midnight,” and that he “hung out” on Burnet Avenue.
Kennedy even acknowledged his nickname during a police interview, and he
admitted that he knew Stuckey, and that Stuckey had previously robbed him.
{¶97} Robb and Paige, two inmates who had been incarcerated with
Kennedy at the justice center, testified that Kennedy had admitted to shooting
Stuckey and a bystander on that day.
{¶98} Kennedy specifically argues that the state failed to prove that he
caused “serious physical harm,” an element of the felonious-assault charge under
R.C. 2903.11(A)(1) relating to Simmons. In support, Kennedy cites testimony from
Officer Thompson, assigned to investigate the Vine-Street shootings, who stated that
Simmons was “shot superficially with a stray bullet.”
{¶99} The “serious physical harm” element of R.C. 2903.11(A)(1) is defined
in R.C. 2901.01(A)(5). This definition includes “any physical harm that involves
some permanent disfigurement or that involves some temporary, serious
disfigurement.” R.C. 2901.01(A)(5)(d). Although Simmons did not testify and
Officer Thompson generally characterized Simmons’s injury as superficial, the
medical records admitted at trial by stipulation demonstrated that Simmons had
sustained multiple “abrasion/puncture wounds” caused by bullet fragments, with
some fragments remaining in his soft tissue. At the hospital, the wounds were
irrigated and treated with antibiotics. Simmons was prescribed vicodin for severe
26
OHIO FIRST DISTRICT COURT OF APPEALS
pain and antibiotics, upon discharge after spending the night at the hospital. This
evidence, when viewed in the light most favorable to the prosecutor, was sufficient to
convince a rational trier of fact beyond a reasonable doubt that Kennedy had caused
“serious physical harm” to Simmons.
{¶100} Finally, Kennedy stipulated to his prior convictions that had resulted
in a disability on the day of the Vine-Street shootings. The stipulation supported his
conviction for having weapons under a disability on that date.
{¶101} We conclude, therefore, after construing the evidence in the light
most favorable to the prosecution, that any rational juror could have concluded
beyond a reasonable doubt that Kennedy had committed all of the offenses related to
the Vine-Street shootings, including the murder of Stuckey, the felonious assault of
Simmons, and the offense of having weapons under a disability.
3. Weight-of-the-Evidence Claim
{¶102} Consistent with his defense at trial, Kennedy attacks the credibility of
the state’s witnesses, many of whom were convicted felons hoping to gain favorable
consideration in exchange for their testimony. But the jurors were certainly aware of
the potential to fabricate under these circumstances, and they were able to view the
witnesses’ credibility and any inconsistencies in their testimony. We note that the
weight to be given the evidence and the credibility of the witnesses are primarily for the
trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. Further, the testimony from the other witnesses and the physical
evidence in the case offered corroboration for the testimony of these “cooperating”
witnesses.
{¶103} In sum, we hold that state presented substantial, credible evidence to
support the convictions. Further, we hold that there is no basis to conclude that the
trier of fact lost its way or committed a manifest miscarriage of justice in resolving
27
OHIO FIRST DISTRICT COURT OF APPEALS
the factual issues against Kennedy. See Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541.
{¶104} Accordingly, we overrule the fourth assignment of error.
E. Sentencing
{¶105} In his final assignment of error, Kennedy raises several sentencing
issues. Before addressing those issues, we note that the trial court merged several of
the offenses and actually convicted Kennedy on only eight counts, even though the
jury found Kennedy guilty of all 15 counts charged in the indictment.
{¶106} With respect to the gambling-apartment shootings, the trial court
imposed the following sentences: Count 1, a life sentence without the possibility of
parole, with a three-year term for the firearm specification, to be served prior to and
consecutive to the life sentence; Count 3, a life sentence without the possibility of
parole; Count 5, eight years of incarceration; Count 7, ten years of incarceration; and
Count 8, three years of incarceration. With respect to the Vine-Street shootings, the
trial court imposed sentence as follows: Count 10, 15 years to life with a three-year
term from the firearm specification, to be served prior to and consecutive to, the 15
years to life; Count 12, eight years of incarceration; and Count 14, three years of
incarceration. The court ordered that all the sentences be served consecutively.
1. R.C. 2941.25
{¶107} Kennedy first argues that his sentences are contrary to law because
the trial court failed to afford him the protections of R.C. 2941.25, Ohio’s multiple-
count statute. This statute mandates a sentence on only one of multiple offenses if
the offenses are allied offense of similar import committed neither separately nor
with a separate animus as to each.
{¶108} We review the trial court’s R.C. 2941.25 determination de novo.
State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
28
OHIO FIRST DISTRICT COURT OF APPEALS
{¶109} Specifically, Kennedy argues that his convictions for the aggravated
murders of Matthew and Turnbow, the felonious assault of Thomas, and the
aggravated robbery at the gambling apartment were allied offense of similar import
subject to merger, committed in the same course of conduct and with the same
animus—to rob the individuals in Matthews’s apartment. Kennedy relies on State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, in which the
Supreme Court held that “when determining whether two offenses are allied offenses
of similar import subject to merger under R.C. 2941.25, the conduct of the accused
must be considered.” Id. at syllabus.
{¶110} The Johnson court abandoned its prior test for determining when
two offenses are allied and subject to merger, which required the comparison of the
elements in the abstract. Id. After Johnson, the sentencing court must consider the
statutory elements of each offense in the context of the defendant’s conduct, and if
the record shows that the state relied upon the same conduct to prove the two
offenses and the offenses were committed neither separately nor with a separate
animus as to each, then the defendant is afforded the protection of R.C. 2941.25, and
the trial court errs in imposing separate sentences for the offenses. See, e.g., Tibbs,
1st Dist. Hamilton No. C-100378, 2011-Ohio-1195, at ¶ 41-42.
{¶111} But Johnson does not require the merger of Kennedy’s offenses
under R.C. 2941.25. The commission of the challenged offenses against separate
victims results in a separate animus as to each. See State v. Wise, 1st Dist. Hamilton
No. C-790664, 1980 Ohio App. LEXIS 10212 (Oct. 15, 1980.) Although the state
proceeded against Kennedy for offenses arising from a single course of conduct, each
offense involved a separate victim—the aggravated murder of Matthews, the
aggravated murder of Turnbow, the robbery of Dumas, and the felonious assault of
Thomas, which was not incidental to the robbery.
29
OHIO FIRST DISTRICT COURT OF APPEALS
{¶112} For a similar reason, we reject Kennedy’s argument that the murder
of Stuckey and the felonious assault of Simmons, both arising out of the Vine-Street
shootings, should merge.
{¶113} Accordingly, because R.C. 2941.25(B) authorized separate
convictions, the trial court did not err by convicting Kennedy for the multiple
offenses.
2. Findings for Consecutive Sentences
{¶114} Kennedy next contends that his aggregate sentence was contrary to
law because the trial court failed to make the findings required by R.C. 2929.14(C)(4)
before imposing consecutive sentences on the underlying offenses. Kennedy was
sentenced in 2012, after the effective date of 2011 Am.Sub.H.B. 86 (“H.B. 86”), which
revived the requirement, as set forth in R.C. 2929.14(C)(4), that trial courts make
findings before imposing consecutive sentences. See State v. Jones, 1st Dist.
Hamilton No. C-110603, 2012-Ohio-2075, ¶ 17. As this court has previously
explained, the sentencing court’s compliance with R.C. 2929.14(C)(4) involves a
three-step process that flows from the statute. See State v. Alexander, 1st Dist. Nos.
C-110828 and C-110829, 2012-Ohio-3349, ¶ 13, 15, and 16. Although the court is not
required to use “talismanic words” to comply with the statutory-findings
requirement, the trial court satisfies the requirements of R.C 2929.14(C)(4) when the
record reflects that the court has engaged in the required analysis and has selected
the appropriate statutory criteria. Id. at ¶ 16.
{¶115} Consecutive sentences imposed without the findings required by R.C.
2929.14(C)(4) are contrary to law and must be vacated. State v. Cowins, 1st Dist.
Hamilton No. C-120191, 2013-Ohio-277, ¶ 36.
{¶116} In this case, the trial court ordered that Kennedy serve all of his
prison terms for the underlying offenses consecutively. The state concedes, and we
have confirmed, that the trial court failed to make the necessary findings to support
30
OHIO FIRST DISTRICT COURT OF APPEALS
these consecutive sentences. Because the trial court ordered all of the sentences for
the underlying offenses to served consecutively without making the necessary
findings, those sentences were contrary to law. Accordingly, we must vacate those
sentences. Cowins at ¶ 37.
3. R.C. 2929.11 and R.C. 2929.12
{¶117} Kennedy argues that the trial court failed to consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors set forth in R.C. 2929.12, and that we should review this alleged
error under an abuse-of-discretion standard. We note that this court does not review
sentences imposed after the effective date of H.B. 86 under an abuse-of-discretion
standard. See State v. White, 1st Dist. Hamilton No. C-130114, 2013-Ohio-___ (Sept.
27, 2013), ¶ 9. Instead, we apply the standard set forth in R.C. 2953.08(G)(2), which
requires a reviewing court to determine if a sentencing error renders the sentence
contrary to law. Id. at ¶ 11.
{¶118} R.C. 2929.11 and 2929.12, unlike R.C. 2929.14(C)(4), are not fact-
finding statutes. See Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-Ohio-
3349 at ¶ 24. Although the trial court is required to consider the factors in these
statutes when sentencing, we may presume that the court did in this case, because
Kennedy has not affirmatively demonstrated otherwise. Id.
4. Postrelease Control
{¶119} We find merit to Kennedy’s claim that the trial court failed to provide
him with his postrelease-control warnings. The postrelease-control statutes require
that, with respect to each offense, the sentencing court notify the offender, both at
the sentencing hearing and in the judgment of conviction, of the length and
mandatory or discretionary nature of postrelease control, of the consequences of
violating postrelease control, and of the length of confinement that could be imposed
31
OHIO FIRST DISTRICT COURT OF APPEALS
for a postrelease-control violation. See R.C. 2929.14(D), 2929.19(B)(2)(c) through
(B)(2)(e), and 2967.28(B) and (C).
{¶120} In this case, although Kennedy was convicted of several “special
felonies” for which postrelease control does not apply, the trial court was statutorily
required to provide postrelease-control warnings as part of Kennedy’s sentence for
the other offenses. These include the first-, second-, and third-degree felony
offenses. See R.C. 2929.19(B)(2)(c)-(e). The trial court’s failure to comply with the
statutory postrelease-control notification requirements after imposing prison terms
for those other than the special-felony offenses renders that part of those sentences
void. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶
26.
5. Earned-Credit Notification
{¶121} Kennedy also challenges the trial court’s failure to inform him that
he would not be eligible to earn credit toward his sentences while incarcerated. At
the time of Kennedy’s sentencing, R.C. 2929.14(D)(3) provided that “[i]f a court
imposes a prison term * * * for a felony, it shall include in the sentence a statement
notifying the offender that the offender may be eligible to earn days of credit under
the circumstances specified in section 2967.193 of the Revised Code.” See R.C.
2929.19(B)(2)(g). The days of credit vary from one day to five days. R.C.
2967.193(A). They may not be earned by a person sentenced to a prison term or
term of life imprisonment for certain offenses, including aggravated murder and
murder, or a person sentenced to life imprisonment without parole for aggravated
murder. R.C. 2967.193(A).
{¶122} In this case, Kennedy was not eligible to earn days of credit while
serving his sentences for aggravated murder and murder. On its face, R.C.
2929.14(D)(3) does not require a court to notify the defendant if, under the
circumstances specified in R.C. 2967.193, he is not eligible to earn days of credit. For
32
OHIO FIRST DISTRICT COURT OF APPEALS
this reason, we reject Kennedy’s argument that the trial court erred by failing to
inform him that he would not be eligible to earn credit towards his sentence while
incarcerated for these ineligible offenses.
{¶123} In light of the above, the fifth assignment of error is sustained in part
and overruled in part.
IV. Conclusion
{¶124} We affirm the trial court’s judgment with respect to the findings of
guilt and the trial court’s application of R.C 2941.25. But we must vacate Kennedy’s
sentences and remand for resentencing for the trial court to consider whether
consecutive sentences are appropriate under R.C. 2929.14(C), and if so, to make the
proper findings on the record. Further, the trial court must provide Kennedy with the
appropriate postrelease-control notifications.
{¶125} Finally, it appears that the sentencing entry contains a typographical
error with respect to counts 11, 13, 15, and the first gun specification to counts 10 and
12. The court’s entry provides: “No sentences imposed on counts #11, #13, and #15
and gun specs to those charges and gun specifications #1 to counts #10 and #12, as
they merge with the sentences imposed on counts #10, #13, and #15.” The entry
should have read, “No sentences imposed on counts #11, #13, and #15 and gun specs
to those charges as they merge with the sentences imposed on counts #10, #12, and
#14. No sentences imposed on gun specification #1 to counts #10 and #12 as they
merge with gun spec #2.” We ask the trial court to take note of this when
resentencing Kennedy on remand.
Judgment accordingly.
DINKELACKER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
33