State v. Smith , 2013 Ohio 3789 ( 2013 )


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  • [Cite as State v. Smith, 
    2013-Ohio-3789
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 1-13-09
    v.
    BRIAN K. SMITH, JR.,                                      OPINION
    DEFENDANT-APPELLANT.
    Appeal from Allen County Common Pleas Court
    Trial Court No. CR 2012 0283
    Judgment Affirmed
    Date of Decision: September 3, 2013
    APPEARANCES:
    Michael J. Short for Appellant
    Terri L. Kohlrieser for Appellee
    Case No. 1-13-09
    SHAW, J.
    {¶1} Defendant-appellant Brian K. Smith, Jr., (“Smith”) appeals the
    February 14, 2013, judgment of the Allen County Common Pleas Court
    sentencing Smith to an aggregate prison term of fifteen years upon Smith’s
    convictions for two counts of Felonious Assault in violation of R.C.
    2903.11(A)(1), both felonies of the second degree, one count of Aggravated
    Robbery in violation of R.C. 2911.01(A)(3), a felony of the first degree, and two
    counts of Kidnapping in violation of R.C. 2905.01(A)(3), both felonies of the first
    degree.1
    {¶2} The facts relevant to this appeal are as follows. On March 8, 2012,
    Linsey Knoch (“Knoch”) and Christopher Miller (“Miller”) were visiting with
    Knoch’s good friend Candace Williams (“Williams”) at Williams’s residence.2 At
    the time, Williams was pregnant with Smith’s child. While Knoch and Miller
    were at Williams’s residence, Smith came over.                           Later, when Williams was
    already upstairs asleep, Knoch and Smith got into an argument as Knoch called
    Smith a “dead beat father.” Eventually, as the argument continued, Smith became
    upset and hit Knoch in the head, knocking her to the floor.
    1
    Smith pled guilty to the charges against him.
    2
    As there was no trial in this case, there is not a single narrative of facts. Therefore, these facts have been
    compiled from the Indictment, the Police Reports, the Pre-Sentencing Investigation, the Bill of Particulars,
    the hearing on the Motion to Suppress Evidence, and the Sentencing Hearing.
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    Case No. 1-13-09
    {¶3} In an effort to prevent Smith from further assaulting Knoch, Miller
    attempted to put Smith in a headlock. Smith broke out of the headlock and was
    infuriated, prompting him to strike Miller numerous times in the head/face area
    with both his fists. As a result of the strikes, Knoch stated that blood went
    everywhere. Knoch then attempted to run out the front door, making it as far as
    the front porch where a neighbor saw her. Smith ran after her and told the
    neighbor that everything was okay and then Smith dragged Knoch back into the
    house.
    {¶4} Back inside the residence, Smith resumed beating Miller. At some
    point, Miller fell to the floor and Smith repeatedly kicked Miller in his back and
    head. Knoch tried to stop Smith from continuing to kick Miller in the head, but
    Smith head-butted her, knocking her down, causing a large hematoma to develop
    on her forehead.
    {¶5} Smith eventually got a saucepan from the kitchen and repeatedly beat
    Miller with it, striking Miller with such force that the pan was dented. While
    Smith beat Miller, Smith yelled at Miller, “If you go down, she gets it,” meaning
    that if Miller passed out, Smith would start to beat Knoch.
    {¶6} At one point, Smith told Miller and Knoch that Smith was going to cut
    them up into little pieces and bury them in the basement. Smith looked through
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    the kitchen for a knife but did not find one. Smith then grabbed a pizza cutter and
    slashed at Miller, but the pizza cutter was dull so it did not cut him.
    {¶7} After the beatings ceased, Smith forced Miller to wipe his blood off
    the walls in the living room with a baby wipe, saying to Miller, “Wipe the walls,
    bitch! I ain’t getting caught up from this!” Knoch observed that Miller appeared
    to barely be conscious, but was complying with the orders that Smith gave him.
    {¶8} Eventually, Smith told Miller and Knoch to take their clothes off.
    Knoch talked Smith out of having to take her clothes off, but Miller disrobed, at
    which point Smith took Miller’s money. Knoch then again tried to escape, but
    Smith put his hand against the door and would not let her out.
    {¶9} Smith next ordered Miller upstairs to take a shower to wash the blood
    off of him, and Knoch went with him. During that time, Smith came up and down
    the stairs repeating how he was going to cut them up and bury them in the
    basement. On one of the times up the stairs, Smith threw a wine bottle at Knoch
    that hit her in the head with such force that it cut her head deeply, going through to
    the third layer of skin/tissue causing her to bleed profusely. This injury was
    approximately three inches long and later required 28 sutures to close.
    {¶10} While this was going on, Williams, who had been in her room asleep
    with her children, managed to call one of her friends and had her friend call the
    police. The police subsequently arrived to Williams’s residence and Smith made
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    Case No. 1-13-09
    Knoch and Miller leave the bathroom where Miller had been washing the blood
    off of him. Smith shoved Miller into a closet, and turned off the lights to the
    house and told Knoch to “shut the kids up.”
    {¶11} When no one answered the door, police broke the glass to gain entry
    into the residence. Knoch then dashed down the stairs with blood all over her
    forehead and told the officers that “he” was still upstairs. Officers searched the
    residence and located Smith, who was hiding under a mattress. Smith, who also
    had active warrants out for his arrest, was arrested. As Smith was being taken out
    of the house, he passed Knoch and said, “You know you had that coming.”
    {¶12} Knoch and Miller were taken by ambulance to St. Rita’s Medical
    Center in Lima. Miller had to be placed on life support to aid his breathing and he
    slipped into a coma. He also suffered a broken rib and a laceration in his nostril
    that required what the doctor referred to as a “complex repair.” Miller’s airway
    was stabilized and he regained consciousness later that evening. After a few days
    in the hospital, he was released. However, due to nerve damage he suffered, he
    has permanent injuries to his arms with nerve sensitivity and numbness.
    {¶13} Knoch’s wound on her head had gone down to the last layer of tissue
    just before the skull. The Physician’s Assistant stated that in his 10 years of ER
    experience less than 5% of these wounds had involved injuries going down that
    far. Knoch was treated and released the same day.
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    Case No. 1-13-09
    {¶14} On August 16, 2012, Smith was indicted in a five count indictment
    by the Allen County Grand Jury. Count 1 charged him with Felonious Assault of
    Christopher Miller in violation of R.C. 2903.11(A)(1), a felony of the second
    degree; Count 2 charged him with the felonious assault of Knoch in violation of
    R.C. 2903.11(A)(1), a felony of the second degree; Count 3 charged him with
    Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first
    degree; Count 4 charged him with Kidnapping of Miller in violation of R.C.
    2905.01(A)(3), a felony of the first degree; and Count 5 charged him with
    Kidnapping of Knoch in violation of R.C. 2905.01(A)(3), a felony of the first
    degree.
    {¶15} On August 27, 2012, Smith filed a motion for bill of particulars.
    (Doc. 11).
    {¶16} On August 31, 2012, Smith filed a motion to suppress, arguing that,
    inter alia, a statement Smith gave March 8, 2012, to Detective Scott Leland should
    be suppressed. (Doc. 13). On September 27, 2012, a hearing was held on the
    motion to suppress. On October 9, 2012, the trial court filed a judgment entry
    denying Smith’s motion to suppress the statement he gave to Detective Scott
    Leland. (Doc. 24).
    {¶17} On October 16, 2012, the State filed a bill of particulars. (Doc. 29).
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    Case No. 1-13-09
    {¶18} On January 7, 2013, a hearing was held wherein Smith agreed to
    plead guilty to the charges in the indictment. In exchange, the State agreed to
    stand silent at sentencing, but reserved the right to argue against merger of the
    offenses. In addition, it was also included in the plea agreement that the court
    would “sentence [Smith] to no more than what he could get for three F-2s, or 24
    years,” as Smith had previously been given an offer to plead guilty to three F-2s,
    but declined that offer.3 The trial court conducted a Criminal Rule 11 colloquy
    with Smith at the hearing, and then accepted Smith’s guilty plea to the charges.
    {¶19} On January 8, 2013, the trial court entered a judgment entry of
    conviction, stating that Smith had pled guilty to two counts of Felonious Assault in
    violation of R.C. 2903.11(A)(1), both felonies of the second degree, one count of
    Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first
    degree, and two counts of Kidnapping in violation of R.C. 2905.01(A)(3), both
    felonies of the first degree. (Doc. 81).
    {¶20} On February 14, 2013, a sentencing hearing was held.                   At the
    sentencing hearing, Smith’s mother gave testimony that Smith had an alcohol
    problem and that he needed help with that problem. Smith also gave a statement
    that he had a drug and alcohol problem, and that he was sorry for what he had
    done to the victims.
    3
    The plea agreement containing this language was filed January 8, 2013. (Doc. 80).
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    Case No. 1-13-09
    {¶21} Ultimately, Smith was sentenced to 5 years in prison on each of the
    five counts in the indictment, with Count 1 to run concurrent to Count 4 (the
    Felonious Assault and Kidnapping of victim Miller), and Count 2 to run
    concurrent to Count 5 (the Felonious Assault and Kidnapping of victim Knoch). It
    was further ordered that the prison term for Counts 1 and 4 was to be served
    consecutive to the prison term imposed for Counts 2 and 5 and that those prison
    sentences would be served consecutive to the five year prison term for Count 3
    (Aggravated Robbery), for an aggregate prison sentence of 15 years. (Doc. 87).
    {¶22} It is from this judgment that Smith appeals, asserting the following
    assignment of error for our review.
    ASSIGNMENT OF ERROR
    THE TRIAL COURT ERRED IN FAILING TO MERGE
    COUNTS FOR THE PURPOSES OF SENTENCING.
    {¶23} In his assignment of error, Smith argues that the trial court erred in
    failing to merge various counts against him for the purposes of sentencing.
    Specifically, Smith contends that his convictions for Felonious Assault and
    Kidnapping against each victim were part of the same course of conduct and
    should merge, and that his conviction for Aggravated Robbery should merge with
    his Felonious Assault and Kidnapping offenses against Miller.
    {¶24} Whether offenses are allied offenses of similar import is a question
    of law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3–10–12, 2011–
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    Case No. 1-13-09
    Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1–10–31, 2011–Ohio–1461, ¶
    36. Revised Code 2941.25, Ohio's multiple-count statute, states:
    (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.
    {¶25} In State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , the
    Supreme Court of Ohio modified the analysis for determining whether offenses
    are allied offenses of similar import under R.C. 2941.25. According to Johnson, a
    court must first determine whether it is possible to commit both offenses with the
    same conduct. Id. at ¶ 48. “If the multiple offenses can be committed with 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.’”
    Id. at ¶ 49, quoting State v. Brown, 
    119 Ohio St.3d 447
    , 2008–Ohio–4569, ¶ 50
    (Lanzinger, J., dissenting). If it is possible to commit the offenses with the same
    conduct and the defendant did, in fact, commit the multiple offenses with the same
    conduct, then the offenses are allied offenses of similar import and will merge. Id.
    at ¶ 50. However, “if the court determines that the commission of one offense will
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    never result in the commission of the other, or if the offenses are committed
    separately, or if the defendant has separate animus for each offense, then
    according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶ 51.
    {¶26} In this case, Smith was convicted of two counts of Felonious Assault,
    one count of Aggravated Robbery, and two counts of Kidnapping. The Felonious
    Assault statute, R.C. 2903.11(A)(1), reads,
    (A) No person shall knowingly * * *
    (1) Cause serious physical harm to another or to another's
    unborn;
    The Aggravated Robbery statute, R.C. 2911.01(A)(3), reads
    (A) No 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 do any of the
    following:
    ***
    (3) Inflict, or attempt to inflict, serious physical harm on
    another.
    The Kidnapping statute, R.C. 2905.01(A)(3), reads
    (A) No 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, for
    any of the following purposes:
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    Case No. 1-13-09
    ***
    (3) To terrorize, or to inflict serious physical harm on the
    victim or another;
    {¶27} In State v. Logan, 
    60 Ohio St.2d 126
     (1979), the Ohio Supreme
    Court provided guidance on when Kidnapping merges with another offense.4 In
    Logan, the Ohio Supreme Court held the following.
    In establishing whether kidnapping and another offense of the
    same or similar kind are committed with a separate animus as to
    each pursuant to R.C. 2941.25(B), this court adopts the following
    guidelines:
    (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, Stall, at ¶ 20.
    {¶28} Thus our analysis of the merger issues in this case is guided by R.C.
    2941.25, Johnson, Logan, and the corresponding criminal statutes referenced
    4
    As both the State and Smith point out in their briefs to this court, in State v. Stall, 3d Dist. No. 3-10-12,
    
    2011-Ohio-5733
    , we referenced the analysis in Logan as still being sound in determining whether
    Kidnapping merges with other offenses.
    -11-
    Case No. 1-13-09
    above. It should be noted that both at the time of sentencing, and on appeal, the
    State concedes that it is possible to commit the offenses in this case during the
    same course of conduct, which would satisfy the first prong of Johnson. However,
    the State adamantly disagrees with Smith’s contention on appeal that in this
    instance the crimes were committed in the same course of conduct or with the
    same animus. Therefore, the State contends that the trial court’s decision not to
    merge the offenses was correct.
    {¶29} Smith argues on appeal that his convictions for Felonious Assault
    and Kidnapping against each victim should merge, and that his conviction for
    Aggravated Robbery should merge with his offenses against Miller.            Smith
    contends that the offenses were committed in the same course of conduct. Smith
    made these same arguments at his sentencing hearing, and at that hearing, the trial
    court ultimately found “that none of the counts merge.” (Feb. 14, 2013, Tr. at 31).
    In making this finding, the court reasoned,
    While the Felonious Assaults and the Kidnappings could
    possibly occur at the same time, that’s only part of the test. The
    other part is you have to view whether there was a separate
    animus for the offenses. When I review the discovery and the
    synopsis in the P.S.I. I would find that all of the offenses are
    separated sufficiently in terms of temporally and really
    geographically within the house. I would also point out that
    according to the information in the discovery and the P.S.I. the
    initial Felonious Assaults occurred and then, according to the
    information that the Court has, Miss Knoch was able to get out
    of the house and the defendant actually ran after her and left the
    house and spoke to a neighbor. So, the Felonious Assaults had
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    occurred. Then they come back into the house and they resume.
    Additional Felonious Assaults and then the Kidnappings occur
    and the Robbery occurs separately from that.
    So, I would find that there are separate animuses for all of the
    offenses.
    (Feb. 14, 2013, Tr. at 31).
    {¶30} Analyzing first the Felonious Assault, Kidnapping, and Aggravated
    Robbery of victim Miller, the facts of this case show that the Felonious Assault
    perpetrated by Smith against Miller occurred over a period of time and continued
    to escalate. Miller was initially beaten bloody by Smith’s fists. That beating was
    stopped when Knoch attempted to leave the residence.             After leaving Miller
    momentarily to bring Knoch back into the residence, Smith resumed beating
    Miller until Miller fell to the ground, at which time Smith kicked Miller repeatedly
    in the head and back. This was interrupted when Knoch tried to stop Smith.
    Subsequently, Miller was further beaten with a kitchen pan to the extent that the
    pan was heavily dented. As a result of these attacks, Miller was extremely bloody,
    barely conscious, and his blood had gotten all over the walls.
    {¶31} Miller was restrained during these beatings, and in the interim. In
    addition, Miller was forced to wipe his blood off of the walls, and forced upstairs
    to take a shower to wash the blood off of him. While Miller was upstairs, the facts
    indicate that Smith came up and down the stairs and yelled that he was going to
    cut Miller and Knoch into pieces and bury them in the basement. This constitutes
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    an attempt to “terrorize” Miller, and had the police not shown up at the residence,
    Miller might have been subjected to further beatings or worse. Notably, when
    Miller was forced to wipe the walls down and forced upstairs, the Felonious
    Assault had already been completed, although there was threat of further Assault.
    {¶32} Based on the facts of this case we find that the Felonious Assault and
    Kidnapping of Miller were separated by time and geography in the home, and that
    the Kidnapping created a substantial increase in risk of harm separate and distinct
    from the Felonious Assault, which would preclude merger under Logan.              In
    addition, the record indicates a separate animus due to the later desire to terrorize
    Miller. Under these circumstances we cannot find that the Felonious Assault and
    the Kidnapping offenses perpetrated against Miller merge.
    {¶33} Furthermore, we cannot find that the Felonious Assault against
    Miller merges with the Aggravated Robbery of Miller, as the Aggravated Robbery
    occurred after the Felonious Assault was complete. It is clear from the facts that
    the Felonious Assault of Miller was not done to further a Robbery, and it only
    occurred to Smith after he had already assaulted Miller to order Miller to strip and
    to take Miller’s money. Thus there was a separate animus for each crime. This is
    consistent with our decision in State v. Diggle, 3d Dist. No. 2-11-19, 2012-Ohio-
    1583, wherein a victim was severely beaten and then robbed, and we determined
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    Case No. 1-13-09
    there was a separate animus for each offense. Diggle at ¶ 17. Therefore, the
    Aggravated Robbery and the Felonious Assault offenses do not merge.
    {¶34} A separate animus also is discernible from the facts for the
    Kidnapping of Miller and the Aggravated Robbery of Miller as the detention far
    exceeded the length of time necessary for an Aggravated Robbery and created a
    substantial increase in risk of harm to Miller. Moreover, the prolonged detention
    was used to terrorize Miller with the threats of death and being chopped to pieces
    and buried in the basement. Furthermore, the detention occurred both before and
    after the Aggravated Robbery. Thus based on the facts of this case, we cannot
    find that any of the offenses against Miller merge.
    {¶35} Turning next to the Felonious Assault and Kidnapping Smith
    perpetrated against Knoch, we similarly find that the offenses should not merge.
    Knoch attempted multiple times to get away from Smith and he restrained her
    liberty in each instance. After Knoch’s early attempt to get away from Smith
    where she made it onto the front porch, Smith head-butted her, knocking her to the
    ground, causing what was described as a large hematoma to develop on Knoch’s
    forehead. Knoch later tried for a second time to get away, but Smith blocked the
    door. Subsequently Knoch was ordered upstairs, and during that time, she was
    struck in the head by a bottle of wine that Smith had thrown, creating a deep,
    three-inch long gash that required 28 sutures.
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    {¶36} While Knoch was upstairs, Smith also made the comments about
    killing her and Miller and cutting them up into pieces. We find that based on these
    facts, the offenses would be considered separate under Logan, and a separate
    animus is discernible for the Kidnapping and the Felonious Assault of Knoch.
    Therefore, we find that the offenses against Knoch should not merge.
    {¶37} Accordingly, we find that none of the offenses committed by Smith
    should have merged and that the trial court’s conclusion on this matter at
    sentencing was correct. Smith’s assignment of error is overruled.
    {¶38} For the foregoing reasons Smith’s assignment of error is overruled
    and the judgment of the Allen County Common Pleas Court is affirmed.
    Judgment Affirmed
    PRESTON, P.J. and ROGERS, J., concur.
    /jlr
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Document Info

Docket Number: 1-13-09

Citation Numbers: 2013 Ohio 3789

Judges: Shaw

Filed Date: 9/3/2013

Precedential Status: Precedential

Modified Date: 2/19/2016