State v. Stall , 2011 Ohio 5733 ( 2011 )

[Cite as State v. Stall, 2011-Ohio-5733.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-10-12
v.
MALCOLM STALL, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 09-CR-0170
Judgment Reversed and Cause Remanded
Date of Decision: November 7, 2011
APPEARANCES:
Geoffrey L. Stoll for Appellant
Clifford J. Murphy for Appellee
Case No. 3-10-12
PRESTON, J.
{¶1} Defendant-appellant, Malcom Stall (hereinafter “Stall”), appeals the
Crawford County Court of Common Pleas’ judgment denying his motion to merge
offenses as allied offenses of similar import. For the reasons stated herein, we
reverse.
{¶2} The instant case is before us upon remand after the Ohio Supreme
Court vacated our original judgment in State v. Lee, et al., 190 Ohio App.3d 581,
2010-Ohio-5672, 943 N.E.2d 602 (hereinafter “Lee I”) for our application of State
v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. State v. Stall,
128 Ohio St.3d 501, 2011-Ohio-1960, 946 N.E.2d 756.
{¶3} We set forth the applicable facts and procedural history of the case in
Lee I and repeat those herein:
{¶4} At approximately 11:00 p.m., Weese went to the back door and
knocked on the door. Mrs. Siclair got up, went to answer the back door, and saw a
young man (Weese) with a coat covering his mouth. Weese informed Mrs. Siclair
that he had a question for her, at which point Weese pushed the door open with
such force that it knocked Mrs. Siclair to the ground, causing her to hit her head on
the back of an end table and suffer a concussion. Additionally, Mrs. Siclair stated
that after she was pushed and hit her head on the end table, she was also punched
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in the face, which resulted in a cut to her head that required seven stitches at the
hospital.
{¶5} Upon gaining entry in the house, Lee and Weese proceeded to search
the house for the $40,000 they believed was hidden in a freezer in the basement.
Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and
wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that
while searching the house, defendants repeatedly demanded that she disclose the
location of the money and drugs, and when she did not give them a location, she
was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she
had breathing due to the duct tape, the pain from being struck repeatedly, along
with the fact that she suffers from COPD (chronic obstructive pulmonary disease).
During the entire home invasion, Mr. Siclair was asleep in a different room and,
because of a severe hearing disability, did not hear anything.
{¶6} Eventually, after cutting the telephone cords to the house, defendants
left the home and took with them jewelry and drugs that they had found inside the
Siclairs’ house. Subsequent to defendants’ departure, Mrs. Siclair crawled her
way to where her husband was sleeping, woke him up, and used a cell phone to
call the police.
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{¶7} On November 9, 2009, the Crawford County Grand Jury indicted all
three defendants with the following charges:1 aggravated burglary in violation of
R.C. 2911.11(A)(1), a felony of the first degree; aggravated robbery in violation of
R.C. 2911.01(A)(3), a felony of the first degree; and felonious assault in violation
of R.C. 2903.11(A)(1), a felony of the second degree. Stall was additionally
charged with kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first
degree. Lee was indicted in case No. 09-CR-0169 (appellate case No. 3-10-11),
Stall was indicted in case No. 09-CR-0170 (appellate case No. 3-10-12), and
Weese was indicted in case No. 09-CR-0179 (appellate case No. 3-10-13).
{¶8} Defendants were arraigned on November 16, 2009. Defendants filed a
joint motion to continue their trials on January 8, 2010. Along with the motion to
continue, the motion also requested that the trial court issue an order precluding
convictions on the counts of aggravated robbery, felonious assault, and
kidnapping. Defendants argued in their motion that, pursuant to R.C. 2941.25, the
felonious assault and the kidnapping counts were allied offenses of similar import
to the aggravated robbery count; and therefore, as to these counts, they could only
be convicted of aggravated robbery. The state filed its response to defendants’
1
Two of the defendants were indicted on additional counts for actions committed separately from the
October 2009 home invasion. Defendant Lee was also indicted on two additional counts, breaking and
entering and aggravated robbery, with respect to separate events that had taken place in September 2009.
Defendant Stall was also indicted on one unrelated count of possession of drugs.
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motion on January 11, 2010, claiming that the issue of merger could be
determined only at the sentencing phase of the trial.
{¶9} On January 11, 2010, the trial court issued its order, denying the
portion of the motion that was seeking a continuance of the trial date. Thereafter,
on January 21, 2010, defendants appeared before the trial court, entered pleas of
guilty to the charges set forth in the indictments, and requested to reserve the right
to argue the issue of merger at sentencing. Entries of conviction were issued on
February 1, 2010.
{¶10} On March 4, 2010, defendants filed their response to the state’s
memorandum in opposition to the merger. On that same date, the state filed its
brief on the merger issue, and on March 5, 2010, defendants filed their brief on the
same issue.
{¶11} A hearing on the merger issue was held on March 5, 2010.
Defendant Lee, Mrs. Siclair, and Detective Chad Filliater testified at the hearing.
Following the presentation of the evidence, the trial court allowed defendants and
the state time to present their written closing arguments. Defendants and the state
filed their final briefs on March 15, 2010. Thereafter, on March 31, 2010, the trial
court issued its ruling, denying the motion to merge the offenses of felonious
assault and kidnapping with the offense of aggravated robbery.
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{¶12} Defendants were sentenced on April 5, 2010, as follows: on the
aggravated burglary offense, Lee, Weese, and Stall were all sentenced to ten years
in prison; on the aggravated robbery offense, Lee, Weese, and Stall were all
sentenced to ten years in prison; on the felonious assault offense, Lee, Weese, and
Stall were all sentenced to eight years in prison; and Stall was sentenced to ten
years in prison on the kidnapping offense. All of defendants’ prison sentences,
including the additional unrelated sentences, were ordered to be served
consecutively.
{¶13} On April 27, 2010, Stall filed a notice of appeal from the trial court’s
judgment entry of sentence and entry denying his motion for merger. (Doc. No.
32). On appeal, Stall presented the following assignment of error: “The trial court
erred in failing to hold that the offenses of aggravated robbery, felonious assault
and kidnapping were allied offense of similar import; requiring merger of the
offenses for purposes of sentencing.” (Appellants’ Brief at iii); Lee, 2010-Ohio-
5672, at ¶15. We ultimately held that the trial court did not err by failing to merge
Stall’s aggravated robbery and felonious assault convictions since the two offenses
were committed separately and with separate animus. Id. at ¶26. However, we
held that the trial court did err by failing to merge Stall’s aggravated robbery and
kidnapping convictions since the kidnapping offense was not committed
separately or with separate animus from the aggravated robbery but was “merely
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incidental to the underlying crime,” relying upon the Ohio Supreme Court’s
decision in State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. Id. at ¶33.
{¶14} Both the State of Ohio and Stall appealed our decision to the Ohio
Supreme Court. The Ohio Supreme Court accepted the State’s discretionary
appeal, declined Stall’s discretionary appeal, vacated the portion of our previous
judgment entry pertaining to Stall, and remanded the case for our application of
State v. Johnson, 2010-Ohio-6314. Consequently, the issue presented upon
remand is whether Stall’s aggravated robbery and kidnapping convictions were
allied offenses of similar import in light of State v. Johnson.2 Therefore, we now
will consider Stall’s original assignment of error with respect to the aggravated
robbery and kidnapping convictions only.
{¶15} Whether offenses are allied offenses of similar import presents a
question of law we review de novo. State v. Brown, 3d Dist. No. 1-10-31, 2011-
Ohio-1461, ¶36, citing State v. Loomis, 11th Dist. No. 2002-A-0102, 2005-Ohio-
1103, ¶8.
{¶16} R.C. 2941.25 is Ohio’s multiple-count statute, and provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
2
We did not apply Johnson in our original opinion since Johnson was decided on December 29, 2010 after
we released Lee I on November 22, 2010. Furthermore, we note that Stall filed a motion for
reconsideration under App.R. 26(A) on December 3, 2010, which we denied on December 22, 2010, again
prior to Johnson.
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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.
{¶17} In State v. Johnson, the Ohio Supreme Court examined R.C. 2941.25
in light of its previous allied offense case law and stated, in relevant part:
{¶47} Under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same
conduct. Thus, the court need not perform any hypothetical or
abstract comparison of the offenses at issue in order to conclude
that the offenses are subject to merger.
{¶48} 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. Blankenship, 38 Ohio St.3d at 119, 526
N.E.2d 816 (Whiteside, J., concurring) (“It is not necessary that
both crimes are always committed by the same conduct but,
rather, it is sufficient if both offenses can be committed by the
same conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both
offenses.” [Emphasis sic]). 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.
{¶49} 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.” Brown, 119 Ohio St.3d
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447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,
dissenting).
{¶50} If the answer to both questions is yes, then the offenses are
allied offenses of similar import and will be merged.
{¶51} 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
separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.
2010-Ohio-6314, at ¶¶47-51.
{¶18} The offense of aggravated robbery is codified in R.C. 2911.01. R.C.
2911.01(A)(3), under which Stall was convicted, provides: “[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 * * *
[i]nflict, or attempt to inflict, serious physical harm on another.” The offense of
kidnapping is codified in R.C. 2905.01. R.C. 2905.01(A)(3), under which Stall
was convicted, provides: “[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 terrorize, or to inflict serious physical harm on
the victim or another[.]”
{¶19} After Mrs. Siclair was knocked to the ground and punched in the face
(the felonious assault charge), defendants Lee and Weese began to search the
house for the money and drugs they believed were hidden in the basement freezer.
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During that time, Stall dragged Mrs. Siclair from the porch into the kitchen and
wrapped duct tape around her head to cover her mouth. After taping her mouth,
the defendants began asking Mrs. Siclair for the location of the money and drugs,
and when Mrs. Siclair would not respond, she was hit with a closed fist. After
reviewing the facts, we conclude that Stall’s conduct constituting an aggravated
robbery under R.C. 2911.01(A)(3) also constituted a kidnapping under R.C.
2905.01(A)(3). Johnson, 2010-Ohio-6314, ¶48. See, also, State v. Davis, 116 Ohio
St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶204, citing State v. Jenkins, 15 Ohio
St.3d 164, 198, 473 N.E.2d 264, fn. 29 and State v. Fears (1999), 86 Ohio St.3d
329, 344, 715 N.E.2d 136 (“a kidnapping is implicit within every aggravated
robbery.”)
{¶20} After reviewing the facts, we are also still persuaded that Stall’s
conduct was “a single act, committed with a single state of mind”—that is Stall’s
conduct constituting the kidnapping offense was merely incidental to and in
furtherance of the aggravated robbery. Johnson, 2010-Ohio-6314, at ¶49, citing
Brown, 2008-Ohio-4569, at ¶50 (Lanzinger, J., dissenting). Our conclusion was
and still is supported by the Ohio Supreme Court’s decision in State v. Logan,
where the Court held:
In establishing whether kidnapping and another offense of the
same or similar kind are committed with a separate animus as to
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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.
60 Ohio St.2d 126, syllabus. Mrs. Siclair’s restraint and movement from the front
porch of her house into her kitchen was incidental to the aggravated robbery.
Jenkins, 15 Ohio St.3d at 197 (kidnapping was incidental to robbery where
defendant, in the course of a bank robbery, aimed a firearm at certain individuals
and ordered others in the bank to move to the rear of the building). The restraint
was not prolonged beyond the time the defendants required to effectuate the
aggravated robbery, and the movement was minimal. State v. Winn, 173 Ohio
App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, ¶33 (moving victim from the
hallway to the bedroom was minimal). Furthermore, the movement of the victim
and her restraint did not subject her to a substantial increase in risk of harm
separate and apart from the aggravated robbery itself. Compare State v. Foust, 105
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Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶142 (separate animus existed
for kidnapping where victim’s leg was tied to a bathtub and the house set on fire);
State v. Hartman (2001), 93 Ohio St.3d 274, 280-81, 754 N.E.2d 1150 (separate
animus for kidnapping when victim had been tied to a bed, gagged, stabbed 138
times, strangled, and had had her throat slit). For these reasons, we cannot
conclude that Stall committed the kidnapping offense with a separate animus
sufficient to support separate convictions.
{¶21} It is important to note that Logan, upon which we relied in Lee I and
continue to rely upon here, was decided twenty years prior to State v. Rance
(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which was overruled in Johnson,
supra. State v. O’Neil, 11th Dist. No. 2010-P-0041, 2011-Ohio-2202, ¶46 (“The
Johnson test reflects the approach followed by the Supreme Court of Ohio prior to
its decision in Rance. * * * Thus, the court’s decisions prior to Rance have
renewed relevance.”). The Ohio Supreme Court has cited Logan at least twenty
(20) times since its release, and we are not persuaded that Johnson affected
Logan’s continuing applicability. In fact, the Court of Appeals has continued to
apply Logan’s syllabus to determine whether aggravated robbery and kidnapping
convictions were committed with separate animus under Johnson. State v.
Howard, 1st Dist. No. C-100240, 2011-Ohio-2862, ¶¶57, 59; State v. Small, 5th
Dist. No. 10CAA110088, 2011-Ohio-4086, ¶¶86-95; State v. Pittman, 5th Dist.
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No. 10CAA110087, 2011-Ohio-4085, ¶49; State v. Hicks, 8th Dist. No. 95169,
2011-Ohio-2780, ¶¶11-21; State v. Walker, 8th Dist. No. 94875, 2011-Ohio-1556,
¶¶40-42; State v. Burton, 8th Dist. No. 94449, 2011-Ohio-198, ¶¶27-32; State v.
Sidibeh (10th Dist.), 192 Ohio App.3d 256, 2011-Ohio-712, 948 N.E.2d 995,
¶¶58-60; State v. McCullough, 12th Dist. Nos. CA2010-04-006, CA2010-04-008,
2011-Ohio-992, ¶20 (Logan appears to remain valid following Johnson).
{¶22} Since Stall’s conduct constituted both an aggravated robbery and a
kidnapping and no separate animus exists to separately support the kidnapping
conviction, the trial court erred by failing to merge Stall’s kidnapping and
aggravated robbery convictions for purposes of sentencing under Johnson and
Logan, supra.
{¶23} Stall’s assignment of error is, therefore, sustained to the extent
expressly stated herein.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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