State v. Rose

[Cite as State v. Rose, 2014-Ohio-2929.]
STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 JE 18
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
SOL ROSE, III )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 12 CR 32

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Atty. Jeffrey J. Bruzzese
Assistant Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952

For Defendant-Appellant: Atty. Bernard C. Battistel
P.O. Box 803
Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 26, 2014
[Cite as State v. Rose, 2014-Ohio-2929.]
WAITE, J.

{¶1} Appellant Sol Rose III appeals his felony convictions for aggravated

robbery and felonious assault from the Jefferson County Court of Common Pleas.

On appeal, Appellant raises four issues in three assignments of error: the weight of

the evidence against him, ineffective assistance of counsel, that his consecutive

sentences were contrary to law, and that his convictions were for allied offenses that

should have merged for sentencing purposes. Appellant’s arguments are without

merit and are overruled. His convictions are affirmed.

Factual and Procedural History

{¶2} Appellant was indicted on February 24, 2012 by the Jefferson County

Grand Jury on three counts: (a) aggravated robbery a first degree felony violation of

R.C. 2911.01(A)(3); (b) felonious assault, a first degree felony violation of R.C.

2903.11(A)(1); and (c) felonious assault, a second degree felony violation of R.C.

2903.11(A)(2). All three relate to an attack on Jason Plaugher in the early morning of

February 11, 2012. Appellant followed Plaugher from the Speedway gas station near

his house after observing the victim make a purchase and place over thirty dollars in

change in his wallet. On his way home from the Speedway, Plaugher realized he

was being followed and turned to confront Appellant, who initially denied that he was

following Plaugher. Plaugher continued home, but as he began to ascend the stairs

to his front door, he was pulled back down the stairs by the hood of his sweatshirt

and stabbed repeatedly from behind until his upstairs neighbor, Charles Barnhart,

threw a chair from his window and struck Appellant in the head. Appellant ran, taking
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with him Plaugher’s wallet and medication. Barnhart called 9-1-1 from his apartment

and then went to help the victim.

{¶3} Plaugher was treated for injuries to his head, neck, and back. He was

able to give a statement and turned his sweatshirt over to police as evidence.

Plaugher first identified Appellant as his assailant in a photo array and again in an in-

person line-up. Plaugher was confident in the identification because he had faced

Appellant when he confronted him about following Plaugher home.

{¶4} Appellant was tried by a jury and convicted in May of 2012. At

sentencing, the trial court merged Appellant’s two felonious assault convictions. The

state elected to proceed to sentencing on count two, the first degree felonious

assault conviction. The trial court sentenced Appellant to six years on count one,

aggravated robbery and five years on count two, felonious assault, for a total

sentence of eleven years. Appellant filed a timely appeal of his sentence.

ASSIGNMENT OF ERROR NO. 1

THE DEFENDANT-APPELLANT’S CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶5} In Appellant’s first assignment of error he challenges the jury’s decision

to convict him on aggravated robbery and felonious assault charges resulting from

the stabbing. On appeal, Appellant emphasizes the record reflects an absence of

DNA evidence, the weapon, and the victim’s belongings. Appellant also alleges that

there were contradictions in Plaugher’s testimony. According to Appellant, the fact

that Barnhart said the victim was “incoherent” after being stabbed fourteen times and
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that Plaugher testified that his recollection of the morning was impaired because he

lost so much blood and was taking pain medication should outweigh the evidentiary

value of his statements. Appellant believes we should ignore the conclusions of the

jury, and instead place more weight on the absence of certain types of evidence than

on the testimony of the various witnesses to the events of February 11, 2012.

{¶6} A challenge to the manifest weight of the evidence addresses not the

mere existence of evidence on each element, but the effect of that evidence in

inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

Even where a reviewing court finds a verdict is supported by sufficient evidence, the

verdict may be found to be against the manifest weight of the evidence. Id. To

evaluate the manifest weight of the evidence, an appellate court reviews the entire

record, “‘weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. The discretionary power to

grant a new trial should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.’” Id. at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). The “[w]eight of the evidence

concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,

to support one side of the issue rather than the other * * * the party having the burden

of proof will be entitled to their verdict, if [the jury], on weighing the evidence in their

minds, * * * shall find the greater amount of credible evidence sustains the issue
 -4-

which is to be established before them. Weight is not a question of mathematics * *

*’” (Emphasis sic.) Thompkins at 387. Although the reviewing court is sometimes

described as “the thirteenth juror” when conducting this review; the weight to be given

the evidence and the credibility of the witnesses are still primarily for the trier of fact

to determine. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

{¶7} In Appellant’s challenge to the evidence supporting his conviction, he

does not cite to any evidence in the record which may tend to exonerate him.

Instead, he relies on the fact that DNA analysis of a pair of Appellant’s pants did not

reveal genetic traces of the victim, the fact that the chair that allegedly ended the

attack was not examined for DNA evidence, the fact that the victim’s belongings were

not recovered, and the fact that the weapon was not recovered. Appellant does not

explain why the absence of this evidence should be given more weight than the

testimony presented at trial, nor does he offer any legal support for this conclusion.

{¶8} The testimony of Mr. Plaugher, the victim, reveals that he was at the

Speedway in the early hours of February 11, 2012. The victim described both the

Speedway and the surrounding area as reasonably well lit due to streetlights and

lighting on nearby properties, including Steubenville High School. He said that he

purchased some soda with cash and received more than $30.00 in change while

Appellant stood near enough to view the transaction. The victim said that he left the

Speedway and noted that Appellant seemed to be following him as he travelled to his

home. At one point, concerned by Appellant’s continued presence on his route
 -5-

home, Plaugher addressed Appellant face to face and told him that since he did not

belong there, he should not be in the area. (Tr. Vol. II, p. 244.)

{¶9} Plaugher continued toward his apartment. As he started up the front

stairs, he was attacked from behind and to the left. His attacker pulled him

backwards using his hood, and stabbed him so violently that initially Plaugher

thought he was being punched. The attacker demanded the victim’s wallet and

continued to assault him until an upstairs neighbor threw a chair out of the window,

striking the attacker on the head. (Tr. Vol. II, p. 245.)

{¶10} When the police and an ambulance responded, Plaugher was able to

give a description of Appellant. The victim was able to identify Appellant from the

Speedway video by his clothing and confirmed that Appellant was the man he

confronted on his way home. Plaugher later picked Appellant’s photo out of a book,

identified him in person in a line-up, and directly identified Appellant at trial.

According to Plaugher’s testimony, he has trouble recalling exactly the events of the

night, but remembers being “belligerent” and cursing when being questioned at the

scene. (Tr. Vol. II, p. 252.) Plaugher also described the extent of his injuries, and the

lingering effect of damage to his head, nerves, and organs. Although Appellant

refers to “numerous” inconsistencies in the victim’s testimony, Appellant does not

specifically identify a single inconsistency. A review of the various portions of the

transcript cited by Appellant reflect repetitive and, at times, unclear questioning, but

do not reflect inconsistent or contradictory testimony by Mr. Plaugher, himself.
 -6-

{¶11} The Ohio Supreme Court has stated in Thompkins, supra, that when a

reviewing court reverses a trial court judgment as against the weight of the evidence,

the court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of

the conflicting testimony.” Id. at 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.

2211 (1982). “The discretionary power to grant a new trial should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.”

Id. Appellant does not identify any conflict or deficiency in the record that would

support a conclusion that the jury “in resolving conflicts in the evidence * * * clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed.” Id. Appellant’s first assignment of error is without merit and is

overruled.

ASSIGNMENT OF ERROR NO. 2

THE FAILURE OF DEFENSE COUNSEL TO SECURE COMPLETE

CROSS-EXAMINATION AS WELL AS OTHER DEFICIENCIES

RESULTED IN PREJUDICIAL ERROR AND INEFFECTIVE

ASSISTANCE OF COUNSEL.

{¶12} Appellant contends that his counsel’s cross-examination of the state’s

law enforcement witnesses was unproductive and limited, that the testimony of a

defense witness was undermined by her personal relationship with counsel, and that

his counsel’s confusion when attempting to admit exhibits into evidence resulted in

ineffective assistance. To prevail on a claim of ineffective assistance of counsel,

Appellant must show not only that counsel's performance was deficient, but also that
 -7-

he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674, (1984); see also State v. Williams, 99 Ohio St.3d 493,

2003-Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance

falling below an objective standard of reasonable representation. Strickland at 687-

688. “Prejudice,” in this context, means a reasonable probability that but for

counsel's errors, the result of the proceeding would have been different. Id. at 694.

{¶13} The United States Supreme Court originally explained in Strickland v.

Washington that an “ineffectiveness claim * * * is an attack on the fundamental

fairness of the proceeding whose result is challenged,” and that, “the ultimate focus

of inquiry must be on the fundamental fairness of the proceeding whose result is

being challenged.” Id. at 697, 670. A defendant/appellant’s burden when

challenging the effectiveness of counsel is to demonstrate that some action or

inaction by counsel operated to undermine or call into question the integrity of the

process that resulted in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714

N.E. 2d 905 (1999). When evaluating the performance of counsel, “courts ‘must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.’” State v. Wesson, 137 Ohio St.3d 309, 2013-

Ohio-4575, 999 N.E.2d 557, ¶81. “Judicial scrutiny of counsel’s performance must

be highly deferential, and a fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland at 669. “It is all too tempting for a
 -8-

defendant to second-guess counsel’s assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.” Id. at 689.

{¶14} Although Appellant notes the two prongs of the Strickland test, his

arguments do not address prejudice, the second prong of the test. Because

Appellant has failed to connect any of the alleged deficiencies of counsel to actual

evidence of prejudice suffered by him, even if we were to conclude that counsel’s

performance was deficient, Appellant has not satisfied his burden under Strickland.

Regardless, Appellant has not demonstrated that defense counsel’s performance

was deficient. The decisions and circumstances challenged by Appellant: counsel’s

decision to use law enforcement testimony rather than further victim testimony to

establish the extent of injuries; the decision not to raise a possible discrepancy in the

early descriptions of the pants worn by the attacker; the fact that defense counsel

knew a defense witness personally; and that defense counsel appeared confused

when seeking to admit some of the exhibits, do not undermine or call into question

the integrity of the process that resulted in conviction. At worst, many of the

decisions Appellant complains of appear to be trial tactic on the part of his counsel.

Appellant has not identified any action or omission by defense counsel that rises to

the level of a deficiency, and completely fails to address or identify any prejudice to

the defense resulting from counsel’s actions. Appellant’s second assignment of error

is without merit and is overruled.
 -9-

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO

CONSECUTIVE TERMS OF IMPRISONMENT.[sic]

{¶15} In his third assignment of error Appellant combines two separate

issues. He challenges the conclusions reached by the trial court concerning the

seriousness and recidivism sections of R.C. 2929.12 and he alleges that his

aggravated robbery and felonious assault convictions are allied offenses of similar

import and should have been merged for sentencing purposes.

{¶16} With regard to Appellant’s R.C. 2929.12 arguments, after hearing

extended discussion from the state, defense counsel, and Appellant concerning his

prior offenses, convictions, sentences, probation, drug use, and other criminal

activities, the trial court stated:

I then have to consider the factors that are outlined in the Ohio Revised

Code as has been indicated by the attorneys as to whether your

conduct would be more or less serious than someone charged with the

same or similar offense.

Under the more serious factors I do have to find that there was serious

physical harm. There were multiple stab wounds. * * *

***
 -10-

[t]here were multiple stab wounds. There’s permanent injury that has

been caused to the victim in the way of his vision impairment and by

way of scarring.

Under the less serious factors, none of those apply. Therefore, the

more serious factors have to outweigh the less serious factors.

Then when I look at the recidivism likely and not likely factors, that is

the factors which would indicate that it’s more or less likely that you will

commit other offense, I do have to find that you have the prior criminal

convictions, three prison terms as you have explained.

And under the recidivism not likely factors, none of those apply to you.

So, the recidivism likely factors also outweigh the not likely factors.

***

I am going to find that your criminal history shows that consecutive

terms are needed to protect the public and that further to sentence you

only on one of the charges and to make them concurrent would not

adequately reflect the seriousness of the crimes that have been

committed.

(Sent. Tr., pp. 30-33.) The trial court’s judgment entry reflected these findings:

The Court further finds that a prison sentence is consistent with the

purposes and principles of sentencing under R.C. §2929.11 because a
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prison sentence is commensurate with the seriousness of the offender’s

conduct and its impact on the victim, because it is reasonably

necessary to deter the defendant in order to protect the public from

future crime, and because it would not place an unnecessary burden on

governmental resources.

The court finds that under ORC §2929.12(B) that the victim suffered

serious physical harm, including multiple stab wounds, permanent

impairment of the victim’s vision; and scarring * * *

[T]he recidivism likely factors outweigh the not likely factors * * *

the offense was so great or unusual that a single term does not

adequately reflect the seriousness of the defendant’s conduct and

defendant’s criminal history shows consecutive terms are needed to

protect the public in that the defendant assaulted the victim from the

rear, began stabbing the victim, stole the victim’s wallet and only

ceased stabbing the victim when a neighbor of the victim threw a chair

at the defendant from a second story window.” (Emphasis sic.)

(6/8/12 J.E., p. 2.) Appellant now contends that the trial court should have given

greater weight to statements made during the sentencing hearing concerning

Appellant’s history of drug use and possible mental disability. Appellant also argues

that the trial court should have recognized Appellant’s continued assertions of

innocence while expressing sympathy for the physical harm suffered by Plaugher as
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remorse, weighing in favor of finding, pursuant to R.C. 2929.12(E)(5), that he felt

genuine remorse for the crimes.

{¶17} Appellant did not object to the imposition of consecutive terms during

his sentencing hearing, and has therefore waived all but a plain error review of his

sentence. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955,

¶152, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶377.

As we have previously noted, individuals who are sentenced after September 30,

2011 are subject to the version of R.C. 2929.14(C)(4) revised by H.B. 86, even if a

plea was entered or verdict returned prior to that date. State v. Williams, 7th Dist. 11

MA 185, 2014-Ohio-1015, ¶27; State v. Smith, 7th Dist. 12 MA 168, 2014-Ohio-1398,

¶19.

{¶18} A trial court’s decision to impose consecutive sentences is reviewed by

us under the Kalish two-step approach. Williams and Smith, supra. The first step in

our analysis is to determine the applicable legal standard, which in this instance is

contained in R.C. 2953.08 “Appeals based on felony sentencing guidelines.” R.C.

2953.08(G)(2) requires:

The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for
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resentencing. The appellate court’s standard for review is not whether

the sentencing court abused its discretion. The appellate court may

take any action authorized by this division if it clearly and convincingly

finds either of the following:

(a) That the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14 * * * whichever, if any, is

relevant;

(b) That the sentence is otherwise contrary to law.

{¶19} Although Appellant is not specific, he apparently believes the record

does not support the sentencing court’s findings. As reflected above, the trial court in

this instance specifically and exhaustively considered the relevant statutes, the

principles and purposes of sentencing, and the information provided by defendant

prior to the imposition of sentence. The court concluded that the viciousness of the

crime, Appellant’s criminal history, which includes repeated instances of criminal

violence, refusal to accept responsibility for either the crime or his criminal history,

and the absence of any clinical evidence of drug addiction, necessitated a greater

penalty. (Sent. Tr., p. 24.) This record supports the trial court’s conclusions.

Appellant’s sentences are not otherwise contrary to law. Nothing in this record or as

raised by Appellant on appeal suggests that the trial court abused its discretion in

imposing consecutive sentences. Appellant’s R.C. 2929.12 argument against

consecutive sentences is overruled.
 -14-

{¶20} The law pertaining to allied offenses in Ohio is continually evolving,

however the Supreme Court’s plurality decision in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, contains the standard applied by the

majority of Ohio appellate courts. “Allied offenses of similar import” are defined by

R.C. 2941.25, which 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.

Although the statute has remained unchanged by the legislature since its passage in

1972 (effective January 1, 1974), Ohio jurisprudence has shifted from a contextual

analysis of the facts of each individual case, to an objective comparison of the

statutory elements of each offense, before this most recent return, in Johnson, to a

fact-driven analysis. Johnson, supra.

{¶21} Pursuant to Johnson, a trial or reviewing court determines whether the

“offenses are allied offenses of similar import” by applying two stages of analysis.

Johnson, supra, ¶48. First, the court determines “whether the offenses were
 -15-

committed by the same conduct,” and “whether it is possible to commit one offense

and commit the other with the same conduct” but not “whether it is possible to commit

one without committing the other.” (Emphasis sic.) Id. at ¶47-48.

{¶22} If the answer to both questions is “yes,” and 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.”

Id. at ¶48. If, on the other hand, “the court determines that the commission of one

offense will never result in the commission of the other,” then the offenses are not

allied and do not merge. (Emphasis sic.) Id. at ¶51.

{¶23} The analysis does not stop there, however. If the court identifies

offenses of similar import, it must consider whether the offenses were committed

separately, or if the defendant had separate animus for each offense. Id. at ¶51. If

the offenses were committed separately or there was separate animus for each, they

remain separate offenses for sentencing purposes. Id. When deciding whether to

merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review

the entire record, including arguments and information presented at the sentencing

hearing, to determine whether the offenses were committed separately or with a

separate animus. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982,

syllabus.

{¶24} Because the test for allied offenses is now both case and fact specific, it

“may result in varying results for the same set of offenses in different cases.”

Johnson at ¶52. An “appellate court reviews the legal conclusion of whether the
 -16-

offenses are allied using a de novo standard, but because the trial judge is the fact-

finder, the trial court’s determinations as to the facts are not reviewable de novo.”

State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶30. “In

fact, the appellate court should defer to the factual findings of the trial court, provided

they are supported by some competent, credible evidence.” Id.

{¶25} Appellant’s argument in support of this final argument does not address

the Johnson test or any other legal analysis or standard. Instead, Appellant asserts

that because a “theft offense” is the only distinguishing factor between the two

criminal statutes, his offenses should merge for sentencing purposes. As Appellant’s

own cursory analysis establishes, the elements of the crimes do not correspond to

such a degree that the commission of one will necessarily result in the commission of

another. Appellant was convicted of aggravated robbery, a violation of R.C.

2929.11.01(A)(3), which criminalizes the commission of a theft offense while armed

with a deadly weapon: in this instance, a knife. Appellant was also convicted of

felonious assault, a violation of R.C. 2903.11(A)(1) which criminalizes the knowing

physical harm of another with a deadly weapon, a knife, as well as knowingly doing

serious physical harm to another. Appellant was guilty of felonious assault under

either theory: he caused physical harm to another with a deadly weapon and in so

doing caused serious physical harm.

{¶26} As the Tenth District Court of Appeals recently noted, “the dominant

animus for aggravated robbery is theft.” State v. Michael, 10th Dist. No. 13AP-436,

2014-Ohio-125, ¶12. The “dominant animus for felonious assault,” on the other
 -17-

hand, is “the doing of physical harm.” Id. Appellant feloniously assaulted Mr.

Plaugher by repeatedly stabbing him in the head, neck, and kidneys with a knife.

Appellant committed aggravated robbery when he took Plaugher’s wallet while

holding a knife. While the knife is a common element of the two crimes, Appellant’s

different conduct satisfied the elements of each offense. Moreover, because the

animus for each crime is separate, R.C. 2941.25 does not apply to require merger.

Appellant’s third assignment of error is without merit and is overruled in its entirety.

Conclusion

{¶27} Appellant’s convictions were not against the manifest weight of the

evidence. Appellant received effective assistance of counsel. Appellant’s

convictions were not allied offenses and do not merge for sentencing purposes. The

trial court properly applied controlling law when imposing consecutive sentences.

Appellant’s sentence is not otherwise contrary to law or an abuse of discretion.

Appellant’s three assignments of error are without merit and are overruled. The

judgment of the trial court is affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.