State v. Frierson , 129 N.E.3d 1004 ( 2019 )

[Cite as State v. Frierson, 2019-Ohio-317.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106841
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL A. FRIERSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-610325-A
BEFORE: E.A. Gallagher, P.J., Kilbane, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 31, 2019
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Patrick Clark
Assistant Public Defender
250 E. Broad Street
#1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Melissa Riley
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Michael Frierson appeals his convictions entered in the
Cuyahoga County Court of Common Pleas. For the following reasons, we reverse and remand.
Facts and Procedural History
{¶2} On October 3, 2016, Frierson was indicted on three counts of rape and two counts of
kidnapping. The rapes in counts one and two and the kidnapping in count three related to
crimes connected against L.C. and were alleged to have occurred on or about July 12, 1997.
The rape in count four and the kidnapping in count five related to crimes connected against C.C.
and were alleged to have occurred on or about September 29, 2000. Each count contained a
sexually violent predator specification and a notice of prior conviction. Frierson did not have
any prior sexually violent offense convictions.
{¶3} The trial court bifurcated the counts pertaining to L.C. and C.C. and separate jury
trials were held. As a result of the trials, Frierson was found not guilty of rape in count one,
guilty of rape in count two, guilty of kidnapping in count three, guilty of rape in count four and
not guilty of kidnapping in count five. The sexually violent predator specifications associated
with the counts for which the juries returned a guilty verdict proceeded to a bench trial, and the
trial court found Frierson guilty of those specifications.
{¶4} The trial court imposed prison terms of 20 years to life for each of Frierson’s
convictions and ordered the three sentences to be served concurrently.
Law and Analysis
I. Sexually Violent Predator Specifications
{¶5} In his first assignment of error, Frierson argues that the trial court committed plain
error when it found him guilty of the sexually violent predator specifications because the
application of R.C. 2971.01, as amended by the legislature in 2005, violates the Ex Post Facto
Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution.
{¶6} Frierson did not raise that argument before the trial court. “Failure to raise at the
trial court level the issue of the constitutionality of a statute or its application, which issue is
apparent at the time of trial, constitutes waiver of such issue and * * * therefore need not be
heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),
syllabus. However, the waiver doctrine of Awan has been ruled to be discretionary. State v.
Bruce, 8th Dist. Cuyahoga No. 89641, 2008-Ohio-926, ¶ 9, citing In re M.D., 38 Ohio St.3d 149,
527 N.E.2d 286 (1988), syllabus; State v. Colon, 8th Dist. Cuyahoga No. 103504,
2016-Ohio-3462, ¶ 13. Finding plain error in this instance, we elect to exercise our discretion
to consider Frierson’s Ex Post Facto argument.
{¶7} The crux of the present Ex Post Facto challenge is stated as follows: At the time
Frierson committed his crimes, he would not have been eligible for sexually violent predator
specifications under the language of R.C. 2971.01 as interpreted by the Ohio Supreme Court in
State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283. The legislature
subsequently amended R.C. 2971.01 in 2005 such that Frierson would be eligible for sexually
violent predator specifications and the enhanced sentencing penalties commiserate therewith.
We find amended R.C. 2971.01, as applied to Frierson, to violate the Ex Post Facto Clause of the
United States Constitution.
A. The Prior Version of R.C. 2971.01
{¶8} At the time of Frierson’s crimes, R.C. 2971.01(H)(1) defined a “sexually violent
predator” as “a person who has been convicted of or pleaded guilty to committing, on or after the
effective date of this section [January 1, 1997], a sexually violent offense and is likely to engage
in the future in one or more sexually violent offenses.” See 1995 Ohio H.B. 180.
B. State v. Smith
{¶9} In State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, the Ohio
Supreme Court held that a conviction of a sexually violent offense cannot support the
specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if
the conduct leading to the conviction and the sexually violent predator specification are charged
in the same indictment. Id. at syllabus. In interpreting the language of R.C. 2971.01(H)(1), the
court held:
These words clearly indicate that at the time of indictment, the person has already
been convicted of a sexually violent offense. A grand jury cannot indict based on
a conviction that has not occurred and may not ever occur.
Id. at ¶ 18.
[T]he General Assembly intended that a conviction of a sexually violent offense
that existed prior to the current indictment must be used to support a
sexually-violent-predator specification.
Id. at ¶ 27.
Under the state’s interpretation of R.C. 2971.01(H)(1), R.C. Chapter 2971 would
impose severe penalties on persons who are first-time offenders but who are also
determined to be sexually violent predators. For example, a person convicted of
gross sexual imposition pursuant to R.C. 2907.05(A)(4), a third-degree felony,
identified as a sexually violent offense by R.C. 2971.01(L)(1), would normally be
subject to a maximum sentence of five years’ imprisonment. R.C. 2907.05(B) and
2929.14(A)(3). However, under the state’s interpretation of R.C. 2971.01(H)(1),
even a first-time offender could be defined as a sexually violent predator and
would be subject to a maximum sentence of life in prison under R.C.
2971.03(A)(3). R.C. Chapter 2971 is a sentence-enhancement statute, and
consequently, we must construe any ambiguities against the state. R.C.
2901.04(A). We decline to interpret R.C. 2971.01(H)(1) to permit the state to
subject first-time offenders of certain sexual offenses to such draconian sentence
enhancements without an unambiguous mandate from the General Assembly. To
do so would conflict with the criminal-sentencing guidelines.
Id. at ¶ 28-29.
C. Amendment of R.C. 2971.01(H)(1).
{¶10} In response to Smith, the General Assembly modified R.C. 2971.01(H)(1) in 2005,
replacing the phrase “has been convicted of or pleaded guilty to committing” with the word
“commits.” It is now no longer necessary for a sex offender to have a prior conviction of a
sexually violent offense in order to satisfy the sexually violent predator specification.
D. The Application of Amended R.C. 2971.01(H)(1) to Frierson Violates the Ex Post
Facto Clause
{¶11} Retroactive changes in the measure of punishment are impermissibly ex post facto
if they subject a defendant to a more severe sentence than was available at the time of the
offense. State v. Furness, 8th Dist. Cuyahoga No. 99930, 2014-Ohio-414, ¶ 11, citing State v.
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829. The Ex Post Facto Clause found
in Section 10, Article I of the United States Constitution, bars “[e]very law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed.” State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 50,
quoting Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 3 Dall. 386 (1798).
{¶12} We find the Ex Post Facto Clause to be applicable in this instance. Under the
plain language in R.C. 2971.01(H)(1) as it existed at the time of Frierson’s offenses, he was not
eligible for the enhanced, indefinite sentencing under R.C. 2971.03 because he did not qualify as
a sexually violent predator. As the Ohio Supreme Court stated in Smith, the words of R.C.
2971.01(H)(1) as it existed during the relevant periods clearly indicated that at the time of
indictment, the person must have already been convicted of a sexually violent offense in order to
be eligible for the specification. The legislature’s subsequent amendment of the statute
following Smith was not mere “clarification” as the state argues, but a significant and substantive
change to the definition of “sexually violent predator,” allowing, for the first time, the underlying
conduct in an indictment to satisfy the specification without a prior conviction. As applied to
Frierson, this amendment greatly enhanced his potential punishment by subjecting him to the
indefinite sentencing found in R.C. 2971.03 whereas he was not subject to an enhanced sentence
prior to the amendment. Therefore, we find that amended R.C. 2971.01(H)(1), as applied to
Frierson, violates the Ex Post Facto Clause of the United States Constitution.
{¶13} Frierson’s first assignment of error is sustained.
{¶14} Frierson’s second and third assignments of error are moot.
II. Confrontation Clause
{¶15} In his fourth assignment of error, Frierson argues that the use of a Skype call to
present witness testimony violated his right to confrontation and his right to due process in his
first jury trial.
{¶16} The Sixth Amendment to the United States Constitution provides, “[i]n all criminal
prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against
him.” The Confrontation Clause of the Sixth Amendment is made applicable to the states by
the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 59, 2001-Ohio-1290, 752 N.E.2d
904 (2001), fn. 4. Consequently, this constitutional right applies to both federal and state
prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution
provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126
Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.
{¶17} However, the United States Supreme Court has held that although “the
Confrontation Clause reflects a preference for face-to-face confrontation at trial,” that
“preference must occasionally give way to considerations of public policy and the necessities of
the case.” Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).
{¶18} In holding that the right to confrontation is not absolute, the court detailed a
number of important reasons for that right, including (1) the giving of testimony under oath, (2)
the opportunity for cross-examination, (3) the ability of the fact finder to observe demeanor
evidence, and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant.
Id. at 845-846; State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14.
{¶19} “The central concern of the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.” Craig at 845.
{¶20} In Marcinick, this court utilized the two-part analysis from Craig to determine
whether the admission of testimony via teleconference at trial violated the defendant’s right of
confrontation. This court held:
To qualify as an exception, the procedure must (1) be justified, on a case-specific
finding, based on important state interests, public policies, or necessities of the
case and (2) must satisfy the other three elements of confrontation — oath,
cross-examination, and observation of the witness’s demeanor.
Marcinick at ¶ 18, citing Harrell v. State, 709 So.2d 1364, 1369 (Fla.App.1998), citing Craig at
849-851.
{¶21} Applying the Craig analysis, this court found in Marcinick that the
teleconferencing testimony of a social worker witness who was out of the country, did not violate
the defendant’s right to confrontation because the state demonstrated that the witness was
unavailable, established the admissibility of the testimony and the two-way video link preserved
the reliability elements of confrontation. Id. at ¶ 22.
{¶22} In State v. Gay, 8th Dist. Cuyahoga No. 101345, 2015-Ohio-524, we rejected a
confrontation clause challenge to three out-of-state victims who testified via Skype where the
state demonstrated the witnesses’ unavailability, the defendant did not object and the witnesses
were subject to cross-examination and observed by both the defendant and the jury throughout
their testimony.
{¶23} In State v. Oliver, 8th Dist. Cuyahoga No. 106305, 2018-Ohio-3667, we upheld the
use of Skype testimony for an out-of-state witness who was providing care for a liver
transplant/dialysis patient but found that the trial court erred in allowing a second witness to
testify via Skype where that witness was not unavailable to testify in person but rather would
have been merely inconvenienced. We found that although the reliability elements of
confrontation had been satisfied for that witness the unavailability threshold was not met by mere
inconvenience.
{¶24} In this instance, Frierson does not argue that the reliability elements of
confrontation set forth in Marcinick were not satisfied but instead asserts that the state failed to
establish the witness’s unavailability. The record reflects that C.C., the victim of the rape
charged in count four, had been deported from the United States in 2002. The state introduced
deportation records pertaining to C.C. that reflected that she was prohibited from entering the
United States “[a]t any time because you have been found inadmissible or excludable under
Section 212 of the Act, or deportable under Section 241 or 237 of the Act, and ordered deported
or removed from the United States, and you have been convicted of a crime designated as an
aggravated felony.” An investigator with the CODIS unit of the Cuyahoga County Prosecutor’s
office testified that their office reached out to immigration officials to arrange to have C.C. return
to the United States for trial but that those efforts were unsuccessful. Frierson correctly points
out that the prosecutor’s office could have sought a Significant Public Benefit Parole through
ICE to allow C.C. leave to return to the United States for trial. However, Frierson did not raise
this option during the extensive pretrial hearings conducted by the trial court concerning C.C.’s
availability to testify and the appropriateness of the Skype connection for trial. Under these
circumstances we cannot say that the trial court erred in finding C.C. to be unavailable.
{¶25} Frierson’s fourth assignment of error is overruled.
III. Allied Offenses
{¶26} In his fifth assignment of error, Frierson argues that the trial court erred in finding
that his convictions for rape and kidnapping in counts two and three did not merge as allied
offenses. Contrary to the state’s argument, this issue was raised and contested by Frierson’s
counsel prior to sentencing.
{¶27} The testimony at trial established that Frierson approached the victim, L.C., on the
street and forced her down a nearby alleyway at gunpoint where he forced L.C. to remove her
clothes and then raped her. L.C. was released immediately following the rape. The trial court
held that the offenses did not merge because L.C. was removed from public view and isolated.
{¶28} R.C. 2941.25(A) allows only a single conviction for conduct that constitutes “allied
offenses of similar import.” Pursuant to R.C. 2941.25(B), a defendant charged with multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed with separate animus.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 13, citing State v. Moss, 69
Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).
{¶29} In Ruff, the Ohio Supreme Court recently clarified the test a trial court and a
reviewing court must employ in determining whether offenses are allied offenses that merge into
a single conviction, stating:
When the defendant’s conduct constitutes a single offense, the defendant may be
convicted and punished only for that offense. When the conduct supports more
than one offense, however, a court must conduct an analysis of allied offenses of
similar import to determine whether the offenses merge or whether the defendant
may be convicted of separate offenses. R.C. 2941.25(B).
A trial court and the reviewing court on appeal when considering whether there
are allied offenses that merge into a single conviction under R.C. 2941.25(A)
must first take into account the conduct of the defendant. In other words, how
were the offenses committed? If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses (1)
the offenses are dissimilar in import or significance — in other words, each
offense caused separate, identifiable harm; (2) the offenses were committed
separately, and (3) the offenses were committed with separate animus or
motivation.
At its heart, the allied offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial or
during a plea or sentencing hearing will reveal whether the offenses have similar
import. When a defendant’s conduct victimizes more than one person, the harm
for each person is separate and distinct, and therefore, the defendant can be
convicted of multiple counts. Also, a defendant’s conduct that constitutes two or
more offenses against a single victim can support multiple convictions if the harm
that results from each offense is separate and identifiable from the harm of the
other offense. We therefore hold that two or more offenses of dissimilar import
exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.
Id. at ¶ 24-26.
{¶30} In determining if two or more offenses were committed with a separate animus this
court in State v. Bailey, 8th Dist. Cuyahoga No. 100993, 2014-Ohio-4684, stated:
[T]he issue of whether two offenses are allied depends not only on whether the
two crimes were committed in the same act, but also with a single state of mind.
The Ohio Supreme Court has defined the term “animus” to mean “purpose or,
more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397
N.E.2d 1345 (1979). Because animus is often difficult to prove directly, it may
be inferred from the surrounding circumstances. When “an individual’s
immediate motive involves the commission of one offense, but in the course of
committing that crime he must, a priori, commit another, then he may well
possess but a single animus, and in that event may be convicted of only one
crime.” Id.Thus, when determining whether two offenses were committed with a separate
animus, the court must consider (1) whether the first offense was merely
incidental to the second offense or whether the defendant’s conduct in the first
offense demonstrated a significance independent of the second, and (2) whether
the defendant’s conduct in the first offense subjected the victim to a substantial
increase in the risk of harm apart from that involved in the second offense. State v.
Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912, ¶ 17.
Id. at ¶ 34-35.
{¶31} With respect to the offenses of rape and kidnapping, the Supreme Court of Ohio
has acknowledged that “implicit within every forcible rape * * * is a kidnapping” because the
victim’s liberty is restrained during the act of forcible rape. State v. Asadi-Ousley,
2017-Ohio-7252, 102 N.E.3d 52, ¶ 38 (8th Dist.), citing Logan at 130. In Logan, the court
provided the following guidelines for determining whether kidnapping and another offense are
allied offenses that should merge prior to sentencing, stating:
(a) Where the restraint or movement of the victim is merely incidental to a
separate underlying crime, there exists no separate animus sufficient to sustain
separate convictions; however, where the restraint is prolonged, the confinement
is secretive, or the movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to each offense
sufficient to support separate convictions;
(b) 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, there exists a separate animus as to each offense sufficient to
support separate convictions.
Logan at syllabus.
{¶32} Applying these guidelines, the Ohio Supreme Court held in Logan that the
offender’s conduct in forcing the victim into an alley before raping her at knife point was
committed without a separate animus. The court found that the movement was slight, the
detention brief and the victim was released immediately after the commission of the underlying
crime, compelling the court’s conclusion that the kidnapping was incidental to the rape. Id. at
135. Although Logan predates Ruff, Ohio courts continue to apply the guidelines set forth in
Logan to determine whether kidnapping and other offenses were committed with a separate
animus, in accordance with the third prong of the Ruff test. State v. Lundy, 8th Dist. Cuyahoga
No. 105117, 2017-Ohio-9155, ¶ 26.
{¶33} We find State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, to be
illustrative in this case. In Echols, victim K.C. was walking home late at night. As she passed
a large tree or shrub near East 93rd Street and Woodland Avenue, “Echols jumped out from the
tree” and came up behind her. Echols held a knife to her throat and threatened her before
moving her from the sidewalk to behind the tree and then raping her. Another attack occurred
approximately five years later, involving a different victim. Victim M.M. was walking home
when a car pulled up and Echols told her to get into the car or he would hurt her. She complied.
She was hit in the head with a brick and raped.
{¶34} On appeal, Echols argued that each rape conviction should have merged with each
kidnapping conviction. Relying on Ruff and Logan, we found that the asportation of victim one
was slight, stating:
Victim one was moved from the sidewalk to behind a tree next to the sidewalk.
There was no increased risk of harm associated with this movement apart from
that associated with the sexual assault. This movement was done for the purpose
of raping [victim one] with no separate, identifiable harm. The movement was
done in conjunction with the rape, and was not separated by any significant length
of time or distance.
Id. at ¶ 38.
{¶35} We concluded that because “the movement was slight, occurred close in time to the
rape, and was done solely to facilitate the rape[,] the trial court erred when it failed to merge the
rape and kidnapping counts related to [victim one].” Echols at ¶ 39.
{¶36} We contrasted victim K.C.’s movement with the movement of victim M.M., who
was abducted “from the bus stop.” With victim M.M., the defendant forced her to get into his
vehicle, hit her with a brick once in the car and drove her away from the area. We found that
the “asportation of [victim two] constituted a separate crime for which [defendant] may be
separately punished.” Echols at ¶ 40.
{¶37} Similarly, in State v. Asadi-Ousley, 2017-Ohio-7252, 102 N.E.3d 52 (8th Dist.), we
considered asportation facts nearly identical to those of the present case. In Asadi-Ousley, the
victim was moved from the sidewalk to a nearby alleyway that was not far from where the victim
had been walking. This court concluded that the restraint of the victim was not prolonged, nor
the movement substantial enough to demonstrate a separate animus for the kidnapping and the
subsequent rape. However, despite the limited asportation, the court in Asadi-Ousley found that
the rape and kidnapping charges did not merge as allied offenses because the victim was knocked
unconscious by a blow delivered to the back of her head during her movement into the alleyway.
Id. at ¶ 52. Therefore, the panel in Asadi-Ousley found that the victim had been subjected to
an increased risk of harm that was separate and apart from that involved in the underlying rape
such that the kidnapping offense ceased to be incidental to the rape.
{¶38} We find the facts on this case to be controlled by Asadi-Ousley, Echols and Logan.
Because the movement of L.C. was slight, occurred close in time to the rape and was done solely
to facilitate the rape we find that the trial court erred when it failed to merge the rape and
kidnapping convictions in counts two and three.
{¶39} Frierson’s fifth assignment of error is sustained.
{¶40} The judgment of the trial court is reversed.
{¶41} We vacate Frierson’s convictions on the sexually violent predator specifications as
well as his sentences on all three of the underlying counts.
{¶42} Case remanded for merger of counts two and three and resentencing consistent
with this opinion.
It is ordered that appellant recover of appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County
Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_____________________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR