[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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{¶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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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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{¶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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{¶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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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.
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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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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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Case No. 1-13-09
{¶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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