State v. Martin , 2013 Ohio 1944 ( 2013 )

[Cite as State v. Martin, 2013-Ohio-1944.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-043
- vs - :
JOEL B. MARTIN, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000568.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor and Alana A. Rezaee, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).
R. Paul LaPlante, Lake County Public Defender and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Joel B. Martin, Jr., appeals from the April 5, 2012 judgment entry of the
Lake County Court of Common Pleas, sentencing him to a total prison term of twelve
years for aggravated robbery and kidnapping. Noting discrepancies between the
testimony of various witnesses, he contends his convictions are against the manifest
weight of the evidence. He also contends the trial court should have merged counts
against him for purposes of sentencing. Finding no error, we affirm.
{¶2} On the evening of September 24, 2011, just before 10:30 p.m., Omar
Suleiman was closing his store, Raw Styles, in the city of Painesville, Ohio. Mr.
Suleiman sells clothing and cell phone services at his store. A former client, Lawrence
Bolden, known by the nickname “Speedy,” entered, and asked to see some shoes. Mr.
Suleiman went to his storeroom to search, only to find that Speedy was following him
with a knife. Speedy told Mr. Suleiman it was a “shakedown,” and the two began to
fight. A second man, wearing a skull cap and partial face mask, entered. This man
pushed Mr. Suleiman further into the back room, held him down, and tried to duct tape
his hands. Mr. Suleiman then heard someone call out to leave; and, Speedy and the
masked man ran out of the store.
{¶3} Mr. Suleiman ran behind his cash registers, and pressed his emergency
button. Leaving his store, he encountered two employees from the Dunkin Donut store
next door, Amanda Nicholson and Savannah Davis. He asked them to call 9-1-1 to
report the robbery, which Ms. Nicholson did, and then attempted, unsuccessfully, to
chase his assailants in his car. Eventually, Mr. Suleiman returned to his store, to find
over $4,000 in cash missing.
{¶4} Ultimately, three men were arrested in connection with the robbery:
Speedy, Mr. Martin, and Mr. Martin’s nephew, Tarence Edwards, better known as “T-
Rex.” Mr. Edwards was identified as the masked man who attempted to duct tape Mr.
Suleiman. Mr. Martin was identified as the mastermind of the plot. He was indicted on
one count of Aggravated Robbery, a felony of the first degree in violation of R.C.
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2911.01(A)(1); two counts of Robbery, second and third degree felonies in violation of
R.C. 2911.02(A)(2) and 2911.02(A)(3), respectively; Kidnapping, a second degree
felony in violation of R.C. 2905.01(A)(2); Abduction, a third degree felony in violation of
R.C. 2905.02(A)(2); and Theft, a fifth degree felony in violation of R.C. 2913.02(A)(1).
{¶5} Jury trial commenced March 5, 2012. Mr. Suleiman, Speedy, Ms.
Nicholson and Ms. Davis, and various investigating officers testified for the state. Mr.
Martin testified on his own behalf. Mr. Suleiman testified that Mr. Martin had worked for
him as odd help around the store; that he liked Mr. Martin; that Mr. Martin had a serious
substance abuse problem; and, that he had been forced to tell Mr. Martin to stop
coming to work, due to the substance abuse problem. He admitted he never saw Mr.
Martin in his store the evening of the robbery.
{¶6} Speedy testified that he had met with Mr. Martin at the home where the
latter was staying in the early evening of September 11, 2011, to smoke crack. He
testified that Mr. Martin was upset about being fired by Mr. Suleiman, and suggested
robbing Raw Styles. T-Rex arrived. According to Speedy, Mr. Martin determined that
the three should go to the store; that Speedy would distract Mr. Suleiman by asking him
to get some shoes; that T-Rex would then enter and hold Mr. Suleiman in the back
room, while Mr. Martin cleared the cash registers. Speedy testified that Mr. Martin gave
him the knife used in the robbery. Speedy testified that Mr. Martin left Raw Styles first,
followed by him, with T-Rex leaving last.
{¶7} Defense counsel elicited that Speedy had given distinctly different stories
to the police on his arrest and interrogation, and that he had entered a plea deal with
the state for his testimony against Mr. Martin.
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{¶8} The Dunkin Donut employees, Ms. Nicholson and Ms. Davis, testified they
saw Mr. Martin leaving Raw Styles at the time of the robbery, and that they recognized
him from his work at the store. They testified that he walked past them, telling them he
had just been fired. Immediately thereafter, they testified that two other men came
running out of Raw Styles, and that Mr. Martin joined them running toward a white SUV,
in which the three left together.
{¶9} Defense counsel pointed out to the jury that the girls’ story – that Mr.
Martin left Raw styles first, followed by Speedy and T-Rex together – conflicted with
Speedy’s testimony that he and Mr. Martin left first, followed by T-Rex.
{¶10} Mr. Martin denied ever entering Raw Styles at the time of the robbery. He
testified that he ran into Speedy and T-Rex outside the store that evening, and that the
two asked him to go into the store, and distract Mr. Suleiman, while they robbed the
store. He testified that he felt too guilty about the proposed plot to join.
{¶11} The jury returned verdicts of guilty on all counts March 8, 2012.
Sentencing hearing was held April 3, 2012. The trial court merged the robbery and theft
counts into that for aggravated robbery, and ordered Mr. Martin to serve ten years on
that count. The trial court further merged the count for abduction into that for
kidnapping, and sentenced Mr. Martin to serve two years on that count, to run
consecutive to the sentence for aggravated robbery. Mr. Martin was also ordered to
pay restitution. Eventually, this appeal ensued.
{¶12} Mr. Martin’s first assignment of error reads: “The trial court erred to the
prejudice of the defendant-appellant when it returned a verdict of guilty against the
manifest weight of the evidence.” Mr. Martin further sets this issue for review: “The
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conviction of the defendant-appellant is not supported by competent, credible evidence
which proves his guilt beyond a reasonable doubt.”
{¶13} In State v. Johnson, 11th Dist. No. 2009-A-0050, 2010-Ohio-3046, ¶41-42,
this court held:
{¶14} “A challenge to the manifest weight of the evidence involves factual
issues. The ‘weight of the evidence addresses the evidence’s effect of inducing belief.’
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶25, * * * (citation omitted);
State v. Thompkins, 78 Ohio St.3d 380, 387 [1997], * * * (‘(w)eight of the evidence
concerns “the inclination of the greater amount of credible evidence, offered in a trial”’)
(emphasis sic) (citation omitted). ‘In other words, a reviewing court asks whose
evidence is more persuasive -- the state’s or the defendant's?’ Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, at ¶25, * * *.
{¶15} “‘The (appellate) court, reviewing the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether, in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.’ Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983), 20 Ohio
App.3d 172, 175, * * *. ‘(T)he weight to be given to the evidence and the credibility of
the witnesses are primarily for the trier of the facts.’ State v. DeHass (1967), 10 Ohio
St.2d 230, * * *, at syllabus; State v. Thomas (1982), 70 Ohio St.2d 79, * * *, at the
syllabus. However, when considering a weight of the evidence argument, a reviewing
court ‘sits as a “thirteenth juror”’ and may ‘disagree() with the factfinder’s resolution of
the conflicting testimony.’ Thompkins, 78 Ohio St.3d at 387, citing Tibbs v. Florida
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(1982), 457 U.S. 31, 42, * * *. ‘The only special deference given in a manifest-weight
review attaches to the conclusion reached by the trier of fact.’ Id. at 390 (Cook, J.,
concurring opinion).” (Parallel citations omitted.)
{¶16} Application of the foregoing standards to this case shows that the jury did
not lose its way. It was made fully aware that Speedy’s original statements to the police
conflicted with his trial testimony – as, indeed, did Mr. Martin’s. Defense counsel
pointed out that Speedy’s testimony regarding the robbers’ exit from the store – Mr.
Martin, himself, then T-Rex – conflicted with that of the Dunkin Donut employees. The
jury heard both of the Dunkin Donut employees testify that Mr. Martin did exit Raw
Styles that evening, and they heard his testimony that he never entered the store at all.
These conflicts in the testimony all fall within the province of the jury: that the jury found
Speedy and the Dunkin Donut employees more credible than Mr. Martin was its right.
{¶17} The first assignment of error lacks merit.
{¶18} Mr. Martin’s second assignment of error reads: “The trial court erred to the
prejudice of the defendant-appellant when it sentenced him to consecutive terms of
imprisonment for aggravated robbery and kidnapping, in violation of his rights against
Double Jeopardy under the Fifth and Fourteenth Amendment (sic) to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.” Under this assignment
of error, Mr. Martin presents this issue for review: “The trial court erred when it failed to
merge the charges of Aggravated Robbery and Kidnapping as allied offenses of similar
import.” Essentially, Mr. Martin argues that any kidnapping of Mr. Suleiman – i.e.,
tricking him into the back room at his store – was merely incidental to the aggravated
robbery. Mr. Martin cites to various cases to this effect from other districts.
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{¶19} Our review of an allied offenses question is de novo. State v. Williams,
123 Ohio St.3d 482, 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the protections of
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments
for the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, * * * ¶23.
At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the penal
philosophy that a major crime often includes as inherent therein the component
elements of other crimes and that these component elements, in legal effect, are
merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * * (1971).”
(Parallel citations omitted.) Williams at ¶13.
{¶20} R.C. 2941.25 states:
{¶21} “(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶22} “(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶23} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy
Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing.
Thus, when the issue of allied offenses is before the court, the question is not whether a
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particular sentence is justified, but whether the defendant may be sentenced upon all
the offenses.’ Underwood at ¶27.” Williams, supra, at ¶15.
{¶24} The method employed by courts in determining whether two crimes
constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio
St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C. 2941.25(A)
analysis, the statutorily defined elements of offenses that are claimed to be of similar
import are compared in the abstract.” Id., paragraph one of the syllabus. (Emphasis
sic.) Since its release, Rance has gone through various modifications and revisions.
See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown, 119 Ohio
St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059.
{¶25} The Supreme Court of Ohio revisited the allied offenses analysis again in
2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
Under the new analysis, which this court later relied upon and embraced in State v.
May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, “[w]hen 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.” Johnson, at the syllabus. The Johnson
court provided the new analysis as follows:
{¶26} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense and
commit the other with the same conduct, not whether it is possible to commit one
without committing the other. * * * If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
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{¶27} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
‘a single act, committed with a single state of mind.’ * * *.
{¶28} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶29} “Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has [a] separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations
omitted.) (Emphasis sic.)
{¶30} This court went on to state in May, supra, at ¶50-51:
{¶31} “‘In departing from the former test, the court developed a new, more
context-based test for analyzing whether two offenses are allied thereby necessitating a
merger. In doing so, the court focused upon the unambiguous language of R.C.
2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,
rather than the elements of the crimes which are charged as a result of the defendant’s
conduct.’” [State v.] Miller[,11th Dist. No. 2009-P-0090, 2011-Ohio-1161,] at ¶47, citing
Johnson at ¶48-52.
{¶32} “‘The (Johnson) court acknowledged the results of the above analysis will
vary on a case-by-case basis. Hence, while two crimes in one case may merge, the
same crimes in another may not. Given the statutory language, however, this is not a
problem. The court observed that inconsistencies in outcome are both necessary and
permissible “* * * given that the statute instructs courts to examine a defendant’s
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conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at
¶52.”
{¶33} In our case, the issue is whether aggravated robbery and kidnapping are
allied offenses of similar import subject to merger for purposes of sentencing, which we
will review de novo. Williams, supra, at ¶12.
{¶34} Aggravated robbery, under R.C. 2911.01(A)(1), states in part: “[n]o
person, in attempting or committing a theft offense, as defined in section 2913.01 of the
Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [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[.]”
{¶35} Kidnapping, under R.C. 2905.01(A)(2), provides in part: “[n]o person, by
force, threat, or deception, * * * 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[.]”
{¶36} The Supreme Court of Ohio has held that aggravated robbery and
kidnapping are allied offenses of similar import. See State v. Wilson, 129 Ohio St.3d
214, 2011-Ohio-2669, ¶11. Again, under R.C. 2941.25, Ohio’s multiple-count statute, if
a defendant’s conduct results in allied offenses of similar import, the defendant may
ordinarily be convicted of only one of the offenses. R.C. 2941.25(A). However, if the
defendant commits each offense separately or with a separate animus, then convictions
may be entered for both offenses. R.C. 2941.25(B); see also State v. Dean, 11th Dist.
No. 2010-P-0003, 2010-Ohio-5185, ¶40 (holding that the trial court did not abuse its
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discretion in not merging aggravated robbery and kidnapping for sentencing because
each had a separate animus.)
{¶37} Thus, although aggravated robbery and kidnapping are allied offenses,
our treatment of appellant’s argument is not over. The specific facts of this case must
be reviewed to determine whether appellant committed the charged offenses separately
or with a separate animus so as to permit multiple punishments.
{¶38} The aggravated robbery was complete when Speedy held Mr. Suleiman at
knife point, told him it was a “shakedown,” and Mr. Martin entered the store to empty the
cash registers. T-Rex continued to restrain Mr. Suleiman and a physical struggle
ensued in the back room. Mr. Suleiman indicated that T-Rex pushed him further into
the back room, while Mr. Martin was emptying the registers. T-Rex attempted to duct
tape the victim’s hands behind his back during the struggle, which resulted in hair loss
to the victim’s arm. Although there is no evidence in the record that the duct tape used
to restrain Mr. Suleiman was brought to the robbery, duct tape was nevertheless found
at the scene, which corroborates the robbers’ intent to physically restrain him. Thus, the
plan to get Mr. Suleiman into the back room and the prolonged restraint involved
subjected him to an increase in the risk of harm that was separate and apart from the
aggravated robbery. See State v. Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471,
¶11, citing State v. Logan, 60 Ohio St.2d 126, syllabus (holding “that even without
prolonged restraint, secret confinement, or substantial movement, where the asportation
or restraint exposes the victims to a substantial increase in the risk of harm separate
and apart from the underlying crime of robbery, a separate animus exists for
kidnapping.”)
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{¶39} Further, as the state points out, this court has previously found that
kidnapping has a separate animus from an allied offense “when the movement of the
victim was achieved through deceit or trickery.” Dean, supra, at ¶36. In this case, Mr.
Suleiman was tricked into entering his back room in order to find the shoe desired by
Speedy.
{¶40} Based on the facts of this case, the aggravated robbery and kidnapping
were not committed with the same animus. Therefore, appellant was properly
sentenced separately for each offense under R.C. 2941.25(B) and Johnson.
{¶41} The second assignment of error lacks merit.
{¶42} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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