State v. Williamson , 2019 Ohio 4380 ( 2019 )

[Cite as State v. Williamson, 2019-Ohio-4380.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-18-049
WD-18-051
Appellee/Cross-Appellant
Trial Court No. 2016CR0089
v.
Terrance R. J. Williamson DECISION AND JUDGMENT
Appellant/Cross-Appellee Decided: October 25, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, David T.
Harold and James A. Hoppenjans, Assistant Prosecuting Attorneys,
for appellee/cross-appellant.
Nathan T. Oswald, for appellant/cross-appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} In this consolidated appeal, defendant-appellant, Terrance Williamson,
appeals the June 22, 2018 judgment of the Wood County Court of Common Pleas which,
following a trial to the court, sentenced appellant to a total of 40 and one-half years of
imprisonment. For the reasons that follow, we affirm appellant’s convictions but vacate
the judgment and remand for resentencing.
{¶ 2} A 13-count indictment was filed against appellant on February 18, 2016.
The charges stemmed from an incident on January 30, 2016, where a mother and
daughter were shot in their home in Fostoria, Wood County, Ohio. Appellant, the alleged
perpetrator, was the mother’s boyfriend.
{¶ 3} On May 22, 2018, the matter proceeded to a bench trial and the following
relevant evidence was presented. Fostoria Police Officer Shilo Frankart testified
regarding verified copies of appellant’s prior convictions. The three separate judgment
entries included convictions for third-degree felonies of possession of cocaine and having
a weapon while under a disability, two fourth-degree felonies of trafficking in cocaine
and a fifth-degree felony possession of drugs.
{¶ 4} Doug H. testified that his home in Curtice, Ohio, had been burglarized in
May 2009, and that the 9 mm Taurus PT111, serial number TAN31139, that was taken
from his home was recovered in the present case. Doug identified the weapon.
{¶ 5} Victim and girlfriend, Lashelle N., testified that she and appellant had been
together for eight years and that they also sold drugs together. Lashelle stated that
appellant would get the drugs, crack cocaine and heroin, for her to sell.
{¶ 6} Lashelle testified that on January 29, 2016, she lived in a mobile home in
Fostoria, Wood County, Ohio, with her daughter, A.J., then 17. She stated that she would
often spend the night in Toledo, Ohio, at appellant’s house. On that night she was in
2.
Toledo with appellant and they were “snorting stuff” and both high. The next morning,
appellant was confused and could not recall how he had gotten to bed. Later that day
they, including appellant’s two young sons, were driving to appellant’s daughter’s school
to watch her basketball game, but appellant could not remember how to get to the school.
{¶ 7} Lashelle testified that when the group returned to appellant’s house
appellant, without provocation, backhanded her and she fell on the couch. Appellant
stated that she was trying to “play” him because she was not letting him hold any of the
drug money. Appellant then fired a gun at Lashelle and the bullet went between Lashelle
and appellant’s four-year-old son.
{¶ 8} Lashelle testified that appellant then told her that they were going to her
home in Fostoria so he could get the money. The group got back in the Chevy HHR and
proceeded to Fostoria with Lashelle driving. Lashelle stated that along the route her
daughter called her; Lashelle informed her to not allow anyone over because they were
on their way. At that point, appellant held the gun to her head and said “if I told her
anything he would blow my head off.” He also told her that if she stopped at her
grandmother’s house two doors down from hers, that he would shoot them (including her
father and brother) too.
{¶ 9} Upon arriving at the home, Lashelle proceeded to the back of the trailer to
her bedroom to get the money. Appellant followed her and she handed it to him. Once
back in the front room, appellant and Lashelle argued about her taking him back to
3.
Toledo. She refused because he had a gun. A “tussle” ensued over the car keys and
Lashelle wound up on the ground.
{¶ 10} According to Lashelle, A.J. got up and Lashelle warned her that appellant
had a gun. This angered appellant and he fired multiple shots hitting her daughter in the
leg. Lashelle testified that she fell on A.J. to protect her and was shot in her chest and
stomach. Appellant then left taking the car keys with him. Lashelle stated that she was
able to unlock her phone and call 911; the recording was played for the court.
{¶ 11} During cross-examination, Lashelle again testified that on the day of the
shooting appellant was confused; the confusion continued up until the shooting. Lashelle
stated that she knew appellant took the prescription drug Klonopin, that it made him
“flip” and that he had recently been prescribed a higher dose. Lashelle stated that the
Chevy HHR involved in the events was leased in her name but that appellant put down
money for it. She said that based on the parties’ relationship, she considered the car
jointly owned. Lashelle agreed that it was her father who indicated on the 911 tape that
appellant stole her car. Finally, Lashelle testified that appellant did not make her get in
the car and go from Toledo to Fostoria; that, other than appellant’s confusion, she did not
object to being in the car.
{¶ 12} During re-direct examination, Lashelle acknowledged that since the day of
his arrest she had been talking with appellant frequently despite a no contact order. She
also admitted that appellant offered to buy her daughter a car if she stopped talking to
4.
police. Lashelle further admitted that the leased Chevy HHR was in her name only and
that she maintained the insurance. She testified that payments were made by both parties.
{¶ 13} Regarding the Klonopin, Lashelle stated that the night before the events at
issue, they took both Klonopin and pain medication by crushing the pills and snorting
them. She agreed that this method was not prescribed by a doctor.
{¶ 14} Finally Lashelle admitted to past physical violence between the pair.
Appellant had used violence to get what he wanted from her. On occasion, it had
occurred in front of her daughter.
{¶ 15} Lashelle’s father, Todd R., testified that on the day of the shooting he was
living in his mother’s trailer a few lots down from Lashelle. He was outside smoking a
cigarette in his truck when he heard some “pops” coming from the direction of her trailer.
He did not immediately identify them as gunshots but, on “instinct,” ran toward
Lashelle’s trailer. Todd testified that he saw appellant, with whom he is familiar, run out
of Lashelle’s door, jump into the HHR, and drive off on State Route 199.
{¶ 16} Fred Reinhart of the Fostoria Fire Department testified that on January 30,
2016, he responded to a call of two people shot. Reinhart treated A.J. Joseph Gill, also a
member of the Fostoria Fire Department, treated Lashelle. Gill testified that Lashelle
was alert and oriented.
{¶ 17} Lashelle’s daughter, A.J., testified next. She stated that there was physical
violence in the relationship between appellant and her mother and that on one occasion
5.
appellant was physical with her. A.J. stated that the violence between her mom and
appellant was generally over money, sometimes over drugs.
{¶ 18} A.J. testified that Lashelle had the Chevy HHR for about one week prior to
the incident. She had not seen appellant drive the car or give Lashelle money for the car.
{¶ 19} A.J. stated that on the day of the shooting, her mom called her from the car
crying. Lashelle said they were coming to the house and not to have anyone come over.
When Lashelle and appellant arrived her hair was disheveled and she was crying. The
two walked back to Lashelle’s bedroom; A.J. could not hear what they were talking about
because she had headphones on. When they came out, appellant walked past A.J. toward
the front door and Lashelle sat down on the couch crying. Lashelle got up and went
toward the door which was behind A.J. who was sitting in a chair. A.J. testified that
appellant hit Lashelle and she careened into the door which then struck the chair A.J. was
sitting on so she had to stand up.
{¶ 20} Once A.J. got out of the chair she observed that appellant had a gun which
he pointed at her. A.J. believed that he aimed the gun at her head and shot but that it was
the second shot that hit her in the left leg. A.J. stated that after she fell to the floor her
mom crawled over and laid on top of her; appellant was trying to take the car keys from
her. Appellant shot Lashelle and then took the keys.
{¶ 21} Fostoria Police Officer Trey Farabee testified that on January 30, 2016, he
responded to a call to Lot 85 at Nye’s Trailer Park. Officer Farabee arrived at the same
time as Officer Gabe Wedge and Sergeant Campbell. Paramedics arrived shortly
6.
thereafter. Officer Farabee observed two female gunshot victims. Officer Farabee
identified various photographic exhibits depicting the crime scene.
{¶ 22} Fostoria Police Officer Wedge testified that a be on the lookout (“BOLO”)
was put out for the Chevy HHR and a call came in from the Wood County Sheriff’s
office that they had the vehicle approximately six miles away north on State Route 199.
When Wedge arrived on the scene, he observed the vehicle out in a field and appellant
was handcuffed in the back of a Wood County cruiser. Appellant’s children, who Wedge
surmised to be four and six years old, were also in the back of the cruiser and were
unharmed. Officer Wedge read appellant his Miranda rights; Wedge testified that
appellant indicated that he understood and he did not appear to be impaired in any way.
Appellant was arrested approximately 15 to 20 minutes after the shooting.
{¶ 23} Officer Wedge testified that he observed spots of blood on the lower
portion of appellant’s pants and his shoes; he ascertained that appellant was not injured.
Officer Wedge identified the items in court.
{¶ 24} Ohio Bureau of Criminal Identification and Investigation (“BCI”) special
agent Megan Roberts, assigned to the crime scene unit, processed the crime scene by first
taking photographs which were admitted into evidence. Agent Roberts was also given
the recovered handgun. She testified that there was black hair in the gun and that the gun
was jammed. Roberts collected projectiles and cartridge casings and blood-stained
clothing. All physical evidence was transferred in either bags or envelopes to the
Fostoria Police Department.
7.
{¶ 25} Wood County Sheriff’s Deputy Rob Eaton testified that following the
BOLO alert, he spotted the Chevy HHR on State Route 199 just after it had driven off the
road. Eaton observed appellant getting out and helping his children get out of the
vehicle. Deputy Eaton testified that based on the information he received he was
concerned about the safety of the situation; he drew his weapon, held it low, and
motioned for appellant to approach with his children. Appellant complied.
{¶ 26} Deputy Eaton’s body cam video was played and stopped at intervals while
he narrated. Appellant was asked whether he rolled his vehicle or just went off the road;
appellant responded that he just went off the road. Eaton stated that appellant did not
delay in answering or slur his words; he did not appear impaired. Appellant was also
asked if he was injured; he stated that he was “a little banged up.” Deputy Eaton asked
appellant about the blood on his left pant leg and boot. According to Eaton, appellant
stated that he was not injured, that it was just a part of his pants. Eaton then lifted
appellant’s pants leg and removed his boot looking for a source of the blood. No wounds
were found. Deputy Eaton also found a sum of money in appellant’s pants pocket; it was
initially left with appellant. Appellant was read his Miranda rights and taken into
custody.
{¶ 27} Wood County Sergeant James Kimble testified that Deputy Eaton radioed
him that he came across the vehicle described in the BOLO. Upon arrival, appellant and
the children were out of the vehicle; Kimble escorted the juveniles back to his cruiser.
8.
Sergeant Kimble recounts his attempts at contacting a family member to get the children.
Ultimately, family members met him at the sheriff’s office in Bowling Green, Ohio.
{¶ 28} Sergeant Kimble stated that he asked appellant for the contact information
for the children. Kimble stated that appellant responded appropriately and had no
difficulty giving him the telephone numbers. Kimble noted no signs of impairment in
appellant.
{¶ 29} Wood County Sheriff’s Deputy Isaiah Loar testified that on January 30,
2106, he arrived at the accident scene on State Route 199 after appellant was in
handcuffs. Loar stood with Deputy Eaton and appellant for several minutes and testified
that appellant did not appear to be impaired.
{¶ 30} Deputy Loar stated that he then spoke with the children asking them
whether they had seen a firearm. The older child said that he saw a black and gray pistol
and that he saw his father throw it out the window shortly after they left the trailer park.
The child said that he saw his father wipe off the gun prior to throwing it out the window.
The gun was recovered in Fostoria by another deputy within throwing distance of State
Route 199.
{¶ 31} All three officers were cross-examined, in part, about the differences in the
indications of alcohol versus drug impairment. The officers acknowledged that not all
drug intoxication symptoms mirror alcohol intoxication, i.e., slurred speech, red eyes,
delayed response, and unsteady gait.
9.
{¶ 32} Fostoria Police Detective Brandon Bell testified that he responded to an
incident at Nye’s Trailer Park. Detective Bell was then called to the scene on State Route
199, approximately one to one-and-one-half miles away, where the firearm was found by
a Wood County deputy. He photographed and collected the gun. Detective Bell stated
that a round of ammunition was stuck in the weapon between the slide and the barrel.
Bell testified that the debris in the slide appeared to be human hair and mud or dirt.
{¶ 33} BCI Forensic Scientist Vicki Bartholomew testified that the firearm did not
reveal any latent fingerprints. Julie Cox, also of the BCI, performed a biological
substance analysis of various items recovered from the scene. Appellant’s jeans tested
positive for the presence of blood. Debris from the firearm was submitted for a nuclear
DNA analysis. BCI Forensic Scientist Devonie Herdeman performed DNA analyses on
the jeans and debris from the firearm. Victim, A.J., was included as a contributor of the
blood stain from the jeans; the statistical probability of the result is rarer than one in one
trillion. As to the debris from the firearm, it was consistent with Lashelle N., again with
a rarer than one in one trillion probability. The reports from the witnesses were admitted
into evidence.
{¶ 34} The final witness was Fostoria Police Officer Shilo Frankart. Officer
Frankart testified that he was called in to head the shooting investigation and he
photographed the crime scene. Officer Frankart stated that he went to Fostoria
Community Hospital and briefly spoke with the shooting victims; he then prepared and
had a search warrant signed for the BCI to process the crime scene. Frankart testified
10.
regarding the photographs taken including photographs of the victims’ injuries following
their release from the hospital.
{¶ 35} Officer Frankart interviewed Lashelle and her daughter at Toledo Hospital.
Both victims stated that appellant was the shooter and that he took Lashelle’s vehicle and
$300. The recordings were admitted into evidence.
{¶ 36} Officer Frankart testified regarding multiple jail telephone conversations
between appellant and his sister and appellant and Lashelle. Notably, when asked,
Lashelle indicated that she was staying with appellant and that it was the “f-ing pills” that
caused him to shoot her. Appellant bemoaned the fact that the whole incident stemmed
from $300, and stated that Lashelle should have just gotten in the car with him.
Appellant also offered to buy A.J. a car if she “comes around.”
{¶ 37} In addition, the parties entered into three stipulations of evidence. First,
that appellant’s hands were swabbed for DNA and the swabs were relayed to BCI.
Second, that the swabs were tested and the results were marked as an exhibit. Finally, the
admission of the results of the ballistics testing conducted by the BCI.
{¶ 38} At the conclusion of the trial, the court found appellant guilty of both
counts of attempted murder and felonious assault, kidnapping, aggravated robbery,
having weapons while under disability, grand theft of a motor vehicle, and tampering
with evidence. Appellant was also found guilty of the attached firearms specifications.
Appellant was acquitted of receiving stolen property.
11.
{¶ 39} At the June 18, 2018 sentencing hearing, discussions were held about
which offenses and specifications would merge. The court merged the attempted murder
and felonious assault convictions but denied appellant’s request to merge the aggravated
robbery and kidnapping convictions. Over objection by the state, the court concluded
that the three-year and one-year gun specifications merged because it was not possible to
commit a one-year violation without committing a three-year violation.
{¶ 40} On June 22, 2018, the court grouped appellant’s convictions and sentenced
him as follows: Count Nos. 3, 5, and 6, kidnapping, aggravated robbery, and attempted
murder of Lashelle N., appellant received 11-year sentences for each count and three
mandatory three-year terms for the firearm specifications. Count No. 9, attempted
murder of A.J., 11 years of imprisonment with a three-year sentence for the firearm
specification. Count Nos. 2, 12, and 13: having weapons under a disability, 18 months
with a one-year firearm specification, grand theft of a motor vehicle, 18 months and
three-year term for the firearm specification, and tampering with evidence, 18 months
with a one-year term for the firearm specification.
{¶ 41} Appellant was sentenced to a prison term of 23 years and 6 months for the
underlying offenses. The court imposed an additional 17 years of imprisonment for the
firearm specifications for a total of 40 years and 6 months. This appeal and cross-appeal
followed.
12.
{¶ 42} Appellant raises the following assignments of error for our review:
Assignment of Error No. 1: Terrance Williamson received
ineffective assistance of counsel because counsel effectively waived
Williamson’s primary defense, failed to adduce evidence necessary to
support that defense, and failed to object to improper evidence that tended
to negate the defense.
Assignment of Error No. 2: The evidence was insufficient to convict
Williamson of aggravated robbery and grand theft of a motor vehicle
because Williamson had an interest in the property that was the subject of
those offenses.
Assignment of Error No. 3: The trial court erred by failing to merge
the kidnapping and aggravated robbery offenses against Lashelle Norman.
Assignment of Error No. 4: Williamson was sentenced in error
because the trial court wrongly believed that it had no discretion to impose
concurrent terms of imprisonment for firearm specifications beyond the two
most serious ones.
{¶ 43} Appellant also raised a “supplemental” assignment of error in his reply
brief which provides:
(Supplemental) Assignment of Error No. 5: Williamson was
sentenced in error because he was not previously convicted of a first or
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second-degree felony when he was sentenced on a firearm specification for
having a weapon under a disability.
{¶ 44} Cross-appellant, state of Ohio raises the following assignment of error:
First Assignment of Error: The trial court erred in merging the
firearm specifications.
{¶ 45} In appellant’s first assignment of error he argues that he received
ineffective assistance of counsel based on his attorney’s failure to pursue the affirmative
defense of involuntary intoxication. To prevail on a claim of ineffective assistance of
counsel, a defendant must prove two elements: “First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Proof of prejudice requires a showing “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph three of the syllabus.
{¶ 46} Appellant argues that counsel essentially “waived” his involuntary
intoxication defense by stating during closing arguments that appellant was “voluntarily”
intoxicated, by failing to elicit the testimony of a medical professional regarding the
14.
common effects of Klonopin, and by failing to object to the state’s evidence that when
they arrested appellant he did not appear intoxicated.
{¶ 47} Unlike voluntary intoxication, R.C. 2901.05(E), involuntary intoxication is
an affirmative defense. State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-
450, ¶ 33. As such, a defendant has the burden of proof by a preponderance of the
evidence. State v. Luebrecht, 3d Dist. Putman No. 12-18-02, 2019-Ohio-1573, ¶ 39,
citing State v. Kortz, 2d Dist. Montgomery No. 25041, 2013-Ohio-121, ¶ 20; R.C.
2901.05(A).
{¶ 48} A successful involuntary intoxication defense may arise in cases involving
the proper use of a prescribed medication. See State v. McKeon, 38 P.3d 1236, 1240
(Az.App.2002), citing State v. Gardner, 870 P.2d 900, 902 (Utah 1993); Brancaccio v.
State, 698 So.2d 597, 600 (Fla.Dist.Ct.App.1997). The intoxicating effects of the drug
must not be known to the individual. Mendenhall v. State, 15 S.W.3d 560, 565
(Tex.App.2000).
{¶ 49} In the instant case, appellant did not take Klonopin in the prescribed
manner. Appellant crushed Klonopin and pain killers and snorted them in order to
maximize the intoxicating effects. Further, Lashelle testified that on prior occasions
appellant “flipped out” when taking Klonopin. Finally, the incident in question did not
happen in isolation. Testimony was presented of instances of past violence between
appellant and Lashelle as well as appellant and A.J.
15.
{¶ 50} Importantly, counsel fully explored appellant’s mental state by initially
entering a not guilty by reason of insanity plea and having appellant submit to a
competency evaluation. At trial, appellant’s counsel repeatedly questioned witnesses
about appellant’s mental state and the indices of drug intoxication. Based on the
foregoing, we find that counsel was not ineffective in his representation of appellant.
Appellant’s first assignment of error is not well-taken.
{¶ 51} In his second assignment of error, appellant argues that his convictions for
aggravated robbery and grand theft of a motor vehicle were not supported by sufficient
evidence. Sufficiency of the evidence is “‘that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally
sufficient to support a jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th
Ed.1990). In State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), the Ohio
Supreme Court outlined the analysis required to apply this standard:
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 of the defendant’s guilt beyond a reasonable
doubt. The relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
16.
doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560, followed.) Id. at paragraph two of the syllabus.
{¶ 52} Relevant to this assignment of error, appellant was convicted of aggravated
robbery and grand theft of a motor vehicle. To be convicted of aggravated robbery, the
state was required to prove that “in attempting or committing a theft offense,” appellant
had “a deadly weapon on or about [his] person or under [his] control” and that he “either
display[ed] the weapon, brandish [ed] it, * * * or use[d] it.” R.C. 2911.01(A)(1). To
convict appellant of grand theft of a motor vehicle, the state was required to prove,
beyond a reasonable doubt, that he did “knowingly * * * obtain or exert control” over the
vehicle “[b]eyond the scope of the express or implied consent of the owner or person
authorized to give content.” R.C. 2913.02(A)(2), (B)(5).
{¶ 53} Appellant claims that he had an ownership interest in the $300 allegedly
stolen from Lashelle and the Chevy HHR. As to the $300, there was varying testimony
as to the source of the funds. Lashelle initially stated that the money was from her
workers’ compensation benefits; she later stated that it was shared illicit drug sale
proceeds. It is undisputed that the money was kept separately at Lashelle’s residence.
Viewing the evidence in a light most favorable to the state, we find that sufficient
evidence supported appellant’s aggravated robbery conviction.
{¶ 54} As to the Chevy HHR, appellant claimed an ownership interest by
providing some money for a down payment and lease payments. However, the evidence
presented at trial demonstrated that Lashelle was named on the lease and maintained
17.
insurance on the vehicle. She stated that on the day of the incident she would not drive
appellant back to Toledo; she would not give him the car keys so he took them from her
and took the vehicle without her consent. On review, the evidence was sufficient to
support a grand theft of a motor vehicle conviction. Appellant’s second assignment of
error is not well-taken.
{¶ 55} Appellant’s third assignment of error maintains that the trial court
erroneously failed to merge the kidnapping and aggravated robbery convictions as they
were allied offenses. Appellant raised this argument before the trial court and the court
made a merger determination; thus, we apply a de novo standard of review. See State v.
Roberson, 2018-Ohio-1955, 113 N.E.3d 204, ¶ 12 (6th Dist.); State v. Williams, 134 Ohio
St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
{¶ 56} R.C. 2941.25 provides:
(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.
(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.
18.
{¶ 57} In determining whether offenses are allied within the meaning of R.C.
2941.25, “courts must evaluate three separate factors- the conduct, the animus, and the
import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at paragraph
one of the syllabus. The Ruff court further explained:
Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of the
following is true: (1) the conduct constitutes offenses of dissimilar import,
(2) the conduct shows that the offenses were committed separately, or
(3) the conduct shows that the offenses were committed with separate
animus.
Id. at paragraph three of the syllabus.
{¶ 58} Kidnapping and aggravated robbery can be allied offenses. See generally
State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154. “A brief restraint
of the victim is present in every aggravated robbery.” State v. Jackson, 1st Dist.
Hamilton No. C-180341, 2019-Ohio-2027, ¶ 10, citing State v. Morris, 1st Dist. Hamilton
No. C-150421, 2016-Ohio-5490, ¶ 17. To determine whether kidnapping and another
offense are subject to merger, the primary question is “‘whether the restraint or
movement of the victim is merely incidental to a separate underlying crime or, instead,
whether it has a significance independent of the other offense.’” State v. Dean, 2018-
Ohio-1740, 112 N.E.3d 32, ¶ 66 (6th Dist.), quoting State v. Logan, 60 Ohio St.2d 126,
135, 397 N.E.2d 1345 (1979). Where the restraint of the victim is prolonged, the
19.
confinement of the victim secretive, or the movement of the victim is substantial, there
exists a separate animus for each offense. Logan at syllabus. A separate animus also
exists where “the asportation or restraint of the victim subjects the victim to a substantial
increase in risk of harm separate and apart from that involved in the underlying crime.”
Id.{¶ 59} Appellant argues that under the present facts, the kidnapping was
“incidental” to the aggravated robbery. 1 They left Toledo and drove straight to Fostoria
with the sole intent of getting appellant his money. Appellant further asserts that
Lashelle was under the same risk of harm from Toledo, where appellant first
“brandished” (or, more accurately fired) his weapon until the robbery was completed in
Fostoria. We disagree.
{¶ 60} The restraint was prolonged and the movement was substantial. See Dean
at ¶ 69. Appellant shot at appellant and then forced her to take him to Fostoria to get
what he believed was his money. During the trip, Lashelle was at great risk of harm. Her
daughter testified that Lashelle called and told her not to have anyone over when they got
there; she was clearly upset and crying. Appellant threatened to kill Lashelle during the
drive and then threatened to kill members of her family.
1
Although we agree with appellant that the state wrongly indicated that appellant was
convicted under R.C. 2905.01(A)(3), this fact does not change the substance of our
analysis.
20.
{¶ 61} Based on the foregoing, we find that the trial court did not err when it
found that the aggravated robbery and kidnapping counts were not allied offenses.
Appellant’s third assignment of error is not well-taken.
{¶ 62} In appellant’s fourth assignment of error he argues that the court
erroneously believed that it was required to sentence him to consecutive terms for the
firearm specifications beyond the two more serious ones. Similarly, yet contrary, the
state’s sole assignment of error argues that the trial court erred by merging the one-year
firearm specifications with the three-year specifications. Since related, the alleged errors
will be jointly addressed.
{¶ 63} R.C. 2929.14, provides in relevant part:
(B)(1)(a) Except as provided in division (B)(1)(e) of this section, if
an offender who is convicted of or pleads guilty to a felony also is
convicted of or pleads guilty to a specification of the type described in
section 2941.141, 2941.144, or 2941.145 of the Revised Code, the court
shall impose on the offender one of the following prison terms:
***
(g) If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, and if the offender is convicted of or pleads
guilty to a specification of the type described under division (B)(1)(a) of
21.
this section in connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious specifications of
which the offender is convicted or to which the offender pleads guilty and,
in its discretion, also may impose on the offender the prison term specified
under that division for any or all of the remaining specifications.
{¶ 64} Both parties argue the application of this court’s case captioned State v.
Welninski, 2018-Ohio-778, 108 N.E.3d 185 (6th Dist.). In Welninski, the appellant
challenged the trial court’s imposition of consecutive sentences for a three-year firearm
specification and five, one-year firearm specifications. We determined that the clear
language of the statute granted the trial court discretion to order the firearm specifications
to run consecutively. Id. at ¶ 106.
{¶ 65} As to the state’s assignment of error challenging the court’s “merger” of
the firearm specifications, R.C. 2941.141(B) provides that the “[i]mposition of a one-year
mandatory prison term upon an offender under division (B)(1)(a)(iii) of section 2929.14
of the Revised Code is precluded if a court imposes an eighteen-month, three-year, fifty-
four-month, six-year, or nine-year mandatory prison term on the offender under division
(B)(1)(a)(i), (ii), (iv), (v), or (vi) of that section relative to the same felony.”
{¶ 66} This court has addressed this sentencing issue in State v. Ellis, 6th Dist.
Wood Nos. WD-15-035, WD-17-036, 2019-Ohio-427. In Ellis, relying on the above-
quoted statute, we determined that “because the trial court imposed the three-year firearm
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specification, it was statutorily precluded from also imposing the one-year firearm
specification on the same count.” Id. at ¶ 17, citing State v. Freeman, 8th Dist. Cuyahoga
No. 106363, 2018-Ohio-2936, ¶ 7.
{¶ 67} The trial court’s June 22, 2018 sentencing judgment entry provides:
The court found that where there was a 1 year and a 3 year firearm
specification on a count that they would merge as a defendant could not
violate a 3 year specification without also violating a 1 year specification.
Otherwise the court found that the specifications, by law, were mandatory
and were required to be served consecutively. The court also found that
where the underlying offenses merged, the firearm specifications did not
merge.
{¶ 68} Reviewing the proceedings below and the trial court’s judgment entry, we
find that the court erred when imposing consecutive prison terms for the various gun
specifications. It is undisputed that R.C. 2929.14(B)(1)(g) allows for the imposition of
consecutive sentences for firearm specifications. However, in the present case the trial
court incorrectly found that the imposition of such sentences was mandatory. The court
did not err by failing to impose additional one-year firearm specifications. Accordingly,
we find appellant’s fourth assignment of error well-taken and the state’s sole assignment
of error not well-taken.
23.
Appellant’s Fifth Assignment of Error and the State’s Motion to Strike
{¶ 69} Appellant’s fifth assignment of error was raised in its reply brief without
leave of court. The state has filed a motion to strike the supplemental assignment of error
and appellant filed a memorandum in opposition.
{¶ 70} App.R. 16(C) states, in relevant part, “The appellant may file a brief in
reply to the brief of the appellee * * *.” Unlike App.R. 16(A), which permits
assignments of error to be presented in appellant’s merit brief, App.R. 16(C) does not
permit new assignments of error to be presented in a reply brief.
{¶ 71} This court has refused to consider additional assignments of error or
arguments included in reply briefs. See State v. Darden, 6th Dist. Erie No. E-09-030,
2010-Ohio-26, fn. 1. See also State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126,
89 N.E.3d 554, ¶ 179, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 18; Everbank Mtge. Co. v. Sparks, 12th Dist. Warren No. CA2011-03-
021, 2012-Ohio-886, fn. 2. Based on the facts of this case, we decline to address
appellant’s fifth assignment of error raised in his reply brief and it is stricken.
{¶ 72} On consideration whereof, the judgment of the Wood County Court of
Common Pleas is reversed as to appellant’s sentence only. Appellant’s sentence is
vacated and the matter is remanded to the trial court for resentencing. Pursuant to App.R.
24, the state is ordered to pay the costs of this appeal.
Judgment reversed in part,
vacated and remanded.
24.
State v. Williamson
C.A. Nos. WD-18-049
WD-18-051
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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