State v. Fields , 2014 Ohio 5386 ( 2014 )

[Cite as State v. Fields, 2014-Ohio-5386.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010453
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTONIO M. FIELDS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 10CR081864
DECISION AND JOURNAL ENTRY
Dated: December 8, 2014
HENSAL, Judge.
{¶1} Appellant, Antonio M. Fields, appeals his convictions in the Lorain County Court
of Common Pleas. For the following reasons, this Court affirms in part and reverses in part.
I.
{¶2} On November 20, 2010, Mr. Fields and his girlfriend, Tracey K., were involved in
an argument at her home after she ended their relationship. According to Tracey, Mr. Fields left
her home and returned several hours later. Upon his return, he resumed arguing with her and hit
her in the face as she was lying down with her four-year-old son, M.N., in the downstairs living
room. Tracey yelled for the assistance of her sister, Wanda M., who was upstairs in a bedroom
with another sister, Shelli K., and several children. Mr. Fields continued to hit Tracey so hard
that she urinated. He also bit her on the back of her neck. According to Wanda, after she and
Shelli came to their sister’s aid, both she and Mr. Fields went into the kitchen where he hit her in
the face causing her to fall to the ground and injure her elbow.
2
{¶3} Mr. Fields, Tracey, M.N., Wanda, and Shelli proceeded upstairs. According to
Shelli, she went to an upstairs bedroom with Tracey and M.N. prior to Mr. Fields and Wanda
coming upstairs. Wanda testified that she was behind Mr. Fields as he went upstairs. Wanda’s
two daughters, six-year-old A.K. and eight-year-old O.K., were in the bedroom closet crying and
trying to hide. Shelli held her two-month-old niece, J.K., in her arms. After all the individuals
were in the bedroom, Mr. Fields told them that this was a “hostage situation” and threatened to
shoot all of them except the infant. He indicated to the eight-year-old that she would be the first
one shot. Mr. Fields demanded any personal property that the victims had, including their debit
cards and accompanying access codes, money, and cell phones. He next proceeded to hit both
Shelli and Tracey. As he punched Shelli in the head, he struck the infant in the head with his
forearm. After Tracey took the baby from her, Mr. Fields continued to punch Shelli in the head.
Tracey’s four-year-old son was also struck in the face when Mr. Fields swung at his mother from
across the bed.
{¶4} With all of the victims in the room, Mr. Fields placed two phone calls. In one
call, he asked for a “hammer and seven burners,” which is slang for a gun and seven bullets. In
another call, he invited men to come over to the house to have sex with the victims for money
since the women had no money to give him. Mr. Fields went back downstairs several times,
which gave the victims an opportunity to place several 911 calls on a cell phone Wanda hid from
him under the infant’s carrier. The victims reported that they could hear glass breaking and
things thrown around the house after he went downstairs.
{¶5} When the police arrived, Mr. Fields held the bedroom door closed. He told the
responding officers that they would need to shoot their way in and that there were women and
children in the room. With the assistance of another officer, Officer Erick Gonzalez was able to
3
open the door wide enough to fire his taser at Mr. Fields. The officers eventually gained entry to
the bedroom where they wrestled with Mr. Fields. Officer Gonzalez sustained a laceration to his
lower right leg when he struck a dresser while attempting to subdue him.
{¶6} Mr. Fields was indicted by the Grand Jury on 18 counts, which included
kidnapping under Revised Code Sections 2905.01(A)(2) and (B)(2), aggravated robbery,
aggravated burglary, assault, and obstructing official business. The kidnapping, aggravated
robbery, and aggravated burglary charges all included repeat violent offender specifications.
After Mr. Fields pleaded not guilty to the charges, the case proceeded to a jury trial. The trial on
the repeat violent offender specifications was bifurcated from the trial on the rest of the charges
at Mr. Fields’ request. At the State’s request, an additional instruction on attempted aggravated
robbery was included. The jury convicted him of all the offenses except one count of kidnapping
the infant. After the jury was discharged, the trial court noticed that a juror failed to sign the
verdict form that convicted him on one of the kidnapping counts. The trial court declared a
mistrial on that count as a result. After a hearing, it also convicted him of the attendant repeat
offender specifications. At sentencing, the court merged the kidnapping convictions under
Section 2905.01(A)(2) with the kidnapping convictions under subsection (B)(2), the aggravated
robbery and aggravated burglary convictions with three of the kidnapping convictions under
Section 2905.01(B)(2), and the obstructing official business convictions with the assault
convictions. It sentenced Mr. Fields to an aggregate term of 30 years in prison with each
individual sentence to run consecutively. He appeals raising four assignments of error for this
Court’s review.
4
II.
ASSIGNMENT OF ERROR I
THE VERDICTS FOR KIDNAPPING AS THE CRIMES WERE DEFINED BY
THE COURT, IN COUNTS ONE, TWO, FIVE, SIX[,] AND SEVEN AND
AGGRAVATED ROBBERY, AS DELINEATED IN COUNT FIFTEEN, WERE
AGAINST THE WEIGHT OF THE EVIDENCE.
{¶7} Mr. Fields argues in his first assignment of error that his convictions for
kidnapping under Section 2905.01(A)(2), aggravated robbery, and aggravated burglary were
against the manifest weight of the evidence.1 We agree only to the extent that his aggravated
robbery conviction was not supported by sufficient evidence.
Aggravated Robbery
{¶8} Mr. Fields argues that his conviction for aggravated robbery was against the
manifest weight of the evidence because there is no evidence he possessed a deadly weapon
during the incident. While his argument is couched in terms of challenging the manifest weight
of the evidence, the substance of his argument suggests that the State did not produce sufficient
evidence of aggravated robbery. As such, this Court will analyze his argument using the
sufficiency standard. See B.C. v. A.S., 9th Dist. Medina No. 13CA0020-M, 2014-Ohio-1326, ¶
4.
{¶9} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law” that this Court reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
1
While Mr. Fields’ assignment of error does not mention that his conviction for
aggravated burglary was against the manifest weight of the evidence, the substance of his
argument also challenges that conviction. Accordingly, this Court will address his argument
concerning whether his aggravated burglary conviction was against the manifest weight of the
evidence.
5
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after reviewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus. The test for sufficiency
requires a determination of whether the State has met its burden of production at trial.
Thompkins at 390 (Cook, J., concurring).
{¶10} Mr. Fields was charged with aggravated robbery under Revised Code Section
2911.01(A)(1). This Section provides that “[n]o person, in attempting or committing a theft
offense, as defined in section 2913.01 of the Revised Code, * * * shall * * * [h]ave a deadly
weapon on or about the offender’s person or under the offender’s control and either display the
weapon, brandish it, indicate that the offender possesses it, or use it[.]”
{¶11} Tracey testified that she initially thought Mr. Fields had a gun because he kept his
hands in the front of his pants under his shirt. According to Tracey, he did not specifically say
anything to indicate that he had a gun other than stating that the eight-year-old would be the first
to die and that the victims were going to make money for him.
{¶12} Shelli testified that she also thought Mr. Fields had a gun because of the way he
kept his hand in his pants and by his actions in the bedroom. She acknowledged that he did not,
in fact, have a gun. Shelli further testified that Mr. Fields told them a gun was on its way and
that he would shoot them. According to her, when the police arrived and attempted to gain entry
into the bedroom, the victims yelled to the police that Mr. Fields did not have a gun despite his
statements to the officers that they would need to shoot their way in.
{¶13} Wanda also testified that she initially believed Mr. Fields possessed a gun by the
way he placed his hand down the inside of his pants. She also inferred he had a gun from the
way he paced around the bedroom telling them they were going to die.
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{¶14} Officer Gonzalez testified that, as he arrived on the scene, he heard a woman
screaming from the second floor window that, “[h]e’s killing us. * * * He has a gun * * *.” He
reported that Mr. Fields told the officers they would have to shoot their way into the bedroom
and repeatedly attempted to provoke the officers into firing their weapons. Officer Gonzalez
acknowledged that, as he patted Mr. Fields down after placing him in custody, he did not
discover a weapon.
{¶15} The State argues that this Court should affirm Mr. Fields’ aggravated robbery
conviction because a jury could infer from the witnesses’ testimony that he possessed a deadly
weapon. The State is correct that, ordinarily, the jury may reasonably infer from the evidence
that the defendant possessed a gun during the robbery even if the weapon is never located. See
State v. Vondenberg, 61 Ohio St. 2d 285 (1980), syllabus; State v. Burns, 9th Dist. Summit No.
26332, 2013-Ohio-4784, ¶ 11, 17; State v. Haskins, 6th Dist. Erie No. E-01-016, 2003-Ohio-70,
¶ 41-42.
{¶16} This case is unique, however, because there is no dispute that Mr. Fields did not
possess a gun at any time during the incident. Tracey, Shelli, and Wanda all testified that, while
they initially believed Mr. Fields had a gun based on the way he positioned his hands and made
threats that he was going to shoot them, it became clear that he did not have a gun after all when
he placed a call for a “hammer and seven burners.” Further, none of the victims testified that
Mr. Fields explicitly told them he had a gun at the time.
{¶17} All of the evidence introduced at trial conclusively indicated that Mr. Fields did
not possess a gun or other deadly weapon during the incident. Although they testified that he
indicated that he possessed a gun, he did not, in fact, have a gun. See R.C. 2911.01(A)(1). This
is not a case where the investigating officers failed to locate a weapon after the crime due to the
7
passage of time or where a defendant fled and secreted the weapon. See Haskins at ¶ 42. Rather,
all of the evidence produced at trial, including the victims’ and Officer Gonzalez’s testimony,
points to the fact that Mr. Fields did not have a gun during the incident. We are not persuaded by
the State’s argument that the victims’ initial belief that Mr. Fields had a gun is sufficient to
justify his conviction when there is no evidence that he actually possessed a gun and there is
evidence that he did not possess a gun. Under the particular facts of this case, and after
reviewing the evidence in a light most favorable to the State, we conclude that no rational trier of
fact could have found that Mr. Fields had a deadly weapon on or about his person or under his
control. Accordingly, the State failed to set forth sufficient evidence on an essential element of
aggravated robbery that was necessary to sustain his aggravated robbery conviction. See R.C.
2911.01(A)(1).
Aggravated Burglary
{¶18} Mr. Fields next argues that his conviction for aggravated burglary is against the
manifest weight of the evidence because he did not trespass in the home with the purpose of
committing a criminal offense. He further argues that any theft offenses were incidental to and
done for the purpose of keeping his victims restrained.
{¶19} To determine whether Mr. Fields’ conviction was against the manifest weight of
the evidence, this court
must review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in evidence, the
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.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
Thompkins, 78 Ohio St. 3d at 387. The appellate court should only exercise its power to reverse a
8
judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,
9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
{¶20} Mr. Fields was convicted of aggravated burglary under Revised Code Section
2911.11(A)(1). This section provides that
[n]o person, by force, stealth, or deception, shall 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, if * * * [t]he offender
inflicts, or attempts or threatens to inflict physical harm on another[.]
A criminal trespass occurs when one, “without privilege to do so, * * * [k]nowingly enter[s] or
remain[s] on the land or premises of another[.]” R.C. 2911.21(A)(2). “Privilege” is defined as
“an immunity, license, or right conferred by law, bestowed by express or implied grant, arising
out of status, position, office, or relationship, or growing out of necessity.” R.C.
2901.01(A)(12). “The privilege to enter or remain on the land or premises may be revoked.”
State v. Hartman, 9th Dist. Medina No. 12CA0057-M, 2013-Ohio-4407, ¶ 28.
{¶21} Wanda testified that she rented the home where the incident occurred. Her two
children and grandchild, along with Tracey and her children, lived at the home. According to
Wanda, because Mr. Fields was a family friend, he was permitted to arrive and leave whenever
he wanted. She did, however, ask him to leave numerous times once the altercation escalated.
{¶22} Tracey testified that, during the relationship, Mr. Fields was welcome to come to
the home. She acknowledged that, even after their argument earlier in the day wherein he left
the home, he was permitted to come back as she never expressly told him he was not welcome to
return. Tracey admitted that Mr. Fields did not force his way into the home when he returned
that evening. Shelli corroborated both Wanda’s and Tracey’s testimony that they told him to
leave more than once.
9
{¶23} The victims’ testimony established that both Wanda and Tracey repeatedly asked
Mr. Fields to leave the home as his behavior escalated. There was no evidence that he either
complied or attempted to comply with their requests to leave the premises. Accordingly, this
Court concludes that the jury could reasonably infer that Mr. Fields’ privilege to remain on the
premises was effectively revoked and that he remained on the premises despite the revocation of
his privilege to be there. See State v. Campbell, 9th Dist. Summit No. 24668, 2010-Ohio-2573, ¶
19.
{¶24} Mr. Fields further argues that he did not restrain the victims for the purpose of
committing a criminal theft. Rather, he maintains, that the alleged theft occurred as a means to
facilitate the victims’ restraint as he continued his argument with Tracey.
{¶25} The victims’ testimony, however, belies Mr. Fields’ argument that he stole their
personal property as a means to keep them restrained rather than for the purposes for committing
a theft. Tracey testified that Mr. Fields told them that this was a “hostage situation” and that “he
was going to get his money * * *.” She reported that he also took the victims’ debit cards and
personal identification numbers in addition to their cell phones.
{¶26} Shelli testified that Mr. Fields demanded that the victims pull down their pants
and open up their shirts to make sure they did not hide anything from him. She reported that he
“called for some guys to come, he was going to make us have sex with them because we had no
money to give him.” According to Shelli, Mr. Fields was demanding that the victims give him
money throughout the ordeal. He also requested their food cards and “anything that anybody
had.”
{¶27} Mr. Fields’ purpose in restraining the victims was a matter of the witnesses’
credibility that was within the jury’s province. State v. DeHass, 10 Ohio St. 2d 230 (1967),
10
paragraph one of the syllabus. “A conviction is not against the manifest weight [of the evidence]
because the jury chose to credit the State’s version of the events.” State v. Glunt, 9th Dist.
Medina No. 13CA0050-M, 2014-Ohio-3533, ¶ 23, quoting State v. Wilson, 9th Dist. Summit No.
26683, 2014-Ohio-376, ¶ 31. This Court, therefore, cannot conclude that the jury clearly lost its
way in convicting Mr. Fields of aggravated burglary.
Kidnapping
{¶28} Mr. Fields argues that his kidnapping convictions were against the manifest
weight of the evidence as there was no evidence that he forcibly removed or restrained the
victims. He further maintains that any restraint was not committed for the purpose of facilitating
a felony offense.
{¶29} Mr. Fields was charged with kidnapping under alternate theories pursuant to
Revised Code Section 2905.01(A)(2) and (B)(2). In this assignment of error, he challenges the
convictions under Section 2905.01(A)(2). This section provides that “[n]o 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 * * * [t]o facilitate the commission of any felony or flight
thereafter[.]”
{¶30} None of the victims testified that Mr. Fields forced them upstairs to the bedroom
or told them they could not leave the bedroom. All of them, however, reported that they did not
believe they could safely leave the bedroom once they were there. All of the witnesses stated
that Mr. Fields referred to the matter as a “hostage situation.” Tracey testified that, even after
Mr. Fields went back downstairs, she did not feel she could leave because he would be able to
see her and get to her before she could flee. Shelli testified that she also did not feel she could
11
leave because he was “too strong,” and did not give them an opportunity to leave when he paced
around the room and “taunt[ed]” them. She reported that her sisters wanted her to jump out of an
upstairs window to go get help, but that she was too scared to do so because she thought Mr.
Fields would catch her and harm the other victims in response to such an attempt. Wanda
testified that she felt as if they could not leave the room because she knew that he would harm
them. All the victims also testified that Mr. Fields told them they were going to make money for
him by performing sexual acts on men that he summoned to the home.
{¶31} The testimony at trial also revealed that Mr. Fields struck several of the victims,
including small children, while they were confined to the bedroom. According to Shelli, Mr.
Fields punched her in the head three or four times. He hit the two-month-old infant with his
forearm the first time he hit Shelli. Tracey reported that, when Mr. Fields swung his arm at her
from across the bed, he ended up slapping her eight-year-old son in the face. All of the victims
testified that Mr. Fields threatened to shoot them and called someone to bring him a gun and a
number of bullets which matched the number of women and children in the room.
{¶32} Tracey, Shelli, and Wanda reported that they could hear glass breaking and items
being thrown around once Mr. Fields went back downstairs. Officer Gonzalez testified that two
other officers who attempted to enter the front door of the residence reported that it appeared
barricaded by items shoved up against the door. He could hear women and children crying and
screaming for help as he arrived on the scene.
{¶33} While there was no evidence that Mr. Fields physically moved any of the victims
or specifically told them they could not leave, the jury could have reasonably found that he
restrained their liberty. The testimony suggested that, once the victims were in the upstairs
bedroom, it became a “hostage situation” in which they were not free to leave. Further, Officer
12
Gonzalez’s testimony suggested that Mr. Fields had barricaded the front door preventing them
from leaving even if they left the bedroom.
{¶34} Regarding Mr. Field’s assertion that there was no evidence that the restraint was
done for the purpose of facilitating a felony offense, both Tracey and Shelli testified that he took
not only cell phones, but also debit cards and elicited personal identification numbers. Their
testimony demonstrated that he made them lift up their clothing to make sure they had not hidden
any items from him. In addition, the fact that he called men over to the house to have sex with
the victims so that he could make money suggests that he restrained the victims for the purposes
of taking their personal property rather than an incidental consequence of his argument with
Tracey. This Court, therefore, concludes that Mr. Fields’ kidnapping conviction was not against
the manifest weight of the evidence.
{¶35} Based on the foregoing, this Court sustains Mr. Fields’ assignment of error only
as it pertains to his aggravated robbery conviction. His remaining arguments concerning his
aggravated burglary and kidnapping convictions are overruled.
ASSIGNMENT OF ERROR II
THE VERDICTS FOR KIDNAPPING IN COUNTS SEVEN THROUGH
FOURTEEN WERE AGAINST THE WEIGHT OF THE EVIDENCE.
{¶36} In his second assignment of error, Mr. Fields argues that his convictions for
kidnapping under Revised Code Section 2905.01(B)(2) were against the manifest weight of the
evidence.2 While he acknowledges that he assaulted the victims, he maintains that he did not
create a substantial risk of physical harm.
2
Mr. Fields includes count seven in both his first and second assignments of error. The
specific conviction in count seven was for kidnapping in violation of Revised Code Section
2905.01(A)(2), which is addressed in his first assignment of error. Accordingly, this Court
13
{¶37} Mr. Fields was convicted of kidnapping in violation of Section 2905.01(B)(2).
This statute provides that
[n]o 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 knowingly do any of the following,
under circumstances that create a substantial risk of serious physical harm to the victim
or, in the case of a minor victim, under circumstances that either create a substantial risk
of serious physical harm to the victim or cause physical harm to the victim: * * *
Restrain another of the other person’s liberty.
A “[s]ubstantial risk” is defined as “a strong possibility, as contrasted with a remote or
significant possibility, that a certain result may occur or that certain circumstances may exist.”
R.C. 2901.01(A)(8). “Serious physical harm” to a person is defined as any of the following:
(a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment; (b) Any physical harm that
carries a substantial risk of death; (c) Any physical harm that involves some
permanent incapacity * * * or that involves some temporary, substantial
incapacity; (d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement; (e) Any physical harm that
involves acute pain of such duration as to result in substantial suffering or that
involves any degree of prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶38} Tracey testified that she sought treatment at the emergency room the next day for
an injury to her ear. Medical records that were submitted as exhibits demonstrated that she
actually sought treatment four days after the incident and was diagnosed with a perforated
eardrum. The records reflected that Tracey required follow up treatment with a specialist after
the diagnosis. It is unclear from the record whether she sustained the injury during the initial
altercation with Mr. Fields downstairs or in the upstairs bedroom. Tracey further testified that
she did not immediately seek medical treatment because she knew that Mr. Fields was admitted
to the hospital.
confines its analysis in this assignment of error to the kidnapping convictions pursuant to Section
2905.01(B)(2) in counts eight through fourteen.
14
{¶39} Shelli testified that she sought medical treatment two days later for a headache.
Medical records submitted into evidence demonstrate that a CT scan of her brain did not reveal
any abnormalities. She was discharged with pain medication. Shelli testified that she had
bruising and knots on her head as a result of Mr. Fields punching her. She described the blows
as “very strong” and that she “thought [her] neck was going to break the way he was just
punching [her] on the top of [her] head so hard.”
{¶40} Finally, the victims testified that Mr. Fields told the responding officers that they
would need to shoot their way into the room and blocked their access by holding the door closed.
Officer Gonzalez testified that he had his duty weapon out of its holster when Mr. Fields
repeatedly stated, “Just shoot it, shoot it, go ahead and shoot.” He further testified that he then
holstered his gun and exchanged it for his taser which he fired into the bedroom at Mr. Fields
once he was able to slide his hand in the door. Officer Gonzalez reported that, after he entered
the room, he observed one barb from the taser in Mr. Fields’ left palm. The other barb
ricocheted off of Mr. Fields’ hand and lodged in the ceiling.
{¶41} After a careful review of the record, we are not persuaded by Mr. Fields’
argument that the jury lost its way in convicting him of kidnapping under Revised Code Section
2905.01(B)(2). Mr. Fields’ admittedly assaulted the victims causing them to seek medical
treatment. Further, his actions in attempting to provoke the police into firing into the room and
deploying a taser placed the victims at a substantial risk of serious physical harm. We, therefore,
overrule his second assignment of error.
15
ASSIGNMENT OF ERROR III
THE MULTIPLE-COUNT PROVISION OF R.C. 2941.25 WAS VIOLATED
WHEN THE TRIAL COURT RAN THE SENTENCES CONSECUTIVELY TO
ONE ANOTHER.
{¶42} In his third assignment of error, Mr. Fields argues that all of his kidnapping
offenses were allied offenses of similar import because they were committed with a single
animus directed toward Tracey. He maintains that, since all the offenses should have merged,
the trial court plainly erred in imposing consecutive sentences. We disagree.
{¶43} Appellate review of a trial court’s determination on allied offenses of similar
import is de novo. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, ¶ 1. Revised Code
Section 2941.25(A) states that “[w]here the same conduct by [a] defendant can be construed to
constitute two or more allied offenses of similar import, * * * the defendant may be convicted of
only one.” If, however, “the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or similar kind
committed separately or with a separate animus as to each, * * * the defendant may be convicted
of all of them.” R.C. 2941.25(B). “[S]ame conduct” is defined as “a single act, committed with
a single state of mind.” State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, ¶ 49, quoting
State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in
judgment only).
{¶44} “Multiple convictions are proper when a single act is committed against multiple
victims and that act constitutes an offense which is defined in terms of conduct toward another.”
State v. Clayton, 9th Dist. Summit No. 26910, 2014-Ohio-2165, ¶ 30, citing State v. Jones, 18
Ohio St. 3d 116, 117-118 (1985). In such a case, the act constitutes two offenses of dissimilar
import. Id., citing Jones at 118. “[W]here a defendant commits the same offense against
16
different victims during the same course of conduct, a separate animus exists for each victim
such that the offenses are not allied, and the defendant can properly be convicted of and
sentenced on multiple counts.” Id., quoting State v. Chaney, 8th Dist. Cuyahoga No. 97872,
2012-Ohio-4934, ¶ 26.
{¶45} Mr. Fields was convicted of seven counts of kidnapping under Section
2905.01(B)(2), one for each victim. He was also convicted of five counts of kidnapping under
Section 2905.01(A)(2), each concerning a different victim. The trial court merged the Section
2905.01(A)(2) offenses with the Section 2905.01(B)(2) offenses prior to imposing sentence.
Because the kidnapping statute defines the offense in terms of conduct toward “another” a
separate animus existed for each victim. See R.C. 2905.01(A); Clayton at ¶ 31; State v.
Kwambana, 12th Dist. Clermont No. CA2013-Ohio-092, 2014-Ohio-2582, ¶ 14. Accordingly,
his kidnapping offenses under Section 2905.01(B)(2) are of dissimilar import, and would not
merge under Section 2941.25. State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, at
¶12. Mr. Fields’ third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT IMPOSED A CRUEL AND UNUSUAL PUNISHMENT
IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION BY SENTENCING FIELDS TO A PRISON TERM OF
THIRTY YEARS.
{¶46} Mr. Fields argues in his fourth assignment of error that his aggregate sentence of
30 years in prison was disproportionate to his crimes and constituted cruel and unusual
punishment in violation of the United States and Ohio constitutions. Specifically, he contends
that his sentence was disproportionate because he did not use a weapon, the victims did not
suffer any serious physical injury, and that the sentence for other more serious crimes, such as
murder, is less than what he would have received in this case. We disagree.
17
{¶47} Review of the proportionality of sentences focuses on the individual sentences
rather than their aggregate effect when they are imposed consecutively. State v. Hairston, 118
Ohio St. 3d 289, 2008-Ohio-2338, ¶ 20. The Ohio Supreme Court has held that “[w]here none of
the individual sentences imposed on an offender are grossly disproportionate to their respective
offenses, an aggregate prison term resulting from consecutive imposition of those sentences does
not constitute cruel and unusual punishment.” Id. at the syllabus. The Hairston court concluded
that an aggregate prison term of 134 years for convictions of four counts of aggravated robbery,
four counts of kidnapping, and three counts of aggravated burglary, all with firearm
specifications, did not amount to cruel and unusual punishment “[b]ecause the individual
sentences imposed by the [trial] court are within the range of penalties authorized by the
legislature, they are not grossly disproportionate or shocking to a reasonable person or to the
community’s sense of justice and do not constitute cruel and usual punishment.” Id. at ¶ 23.
{¶48} After merging many of Mr. Fields’ convictions, the trial court sentenced him to
the following prison terms: (1) seven years for kidnapping Wanda; (2) five years for kidnapping
Shelli; (3) five years for kidnapping Tracey; (4) three years for kidnapping the infant, J.K.; (5)
three years for kidnapping the four-year-old, M.N.; (6) three years for kidnapping the six-year-
old, A.K.; (7) three years for kidnapping the eight-year old, O.K.; and (8) 12 months for
assaulting Officer Gonzalez. All of the kidnapping offenses were first-degree felonies while the
assault offense was a fourth-degree felony.
{¶49} Under Section 2929.14(A)(1), Mr. Fields could have received a maximum
sentence of 11 years for each kidnapping count. He received the maximum sentence of 12
months for the assault on Officer Gonzalez. R.C. 2929.14(A)(5). Each individual sentence is,
therefore, with the statutory range of penalties that the trial court could have imposed. Further,
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given the facts of this case, the sentences were not grossly disproportionate or shocking to a
sense of justice and, therefore, do not constitute cruel and unusual punishment. Accordingly, this
Court concludes that Mr. Fields’ aggregate prison sentence of 30 years does not constitute “cruel
and unusual punishment[ ]” in violation of either the Eighth Amendment to the United States
Constitution or Section 9, Article I of the Ohio Constitution. His fourth assignment of error is
overruled.
III.
{¶50} Mr. Fields’ first assignment of error is sustained in part insofar as there was
insufficient evidence to support his conviction for aggravated robbery. Mr. Fields’ remaining
assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas
is affirmed in part, reversed in part, and the cause is remanded for the trial court to vacate his
conviction for aggravated robbery.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.