State v. Lee

[Cite as State v. Lee, 2010-Ohio-1546.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 08 MA 115
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MICHAEL LEE )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 07 CR 1562 B

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Jeremy J. Masters
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 31, 2010
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WAITE, J.

{¶1} Appellant, Michael Lee, appeals his convictions and sentencing on one

count of aggravated robbery, a violation of R.C. 2911.01(A)(1), a felony of the first

degree, and one count of kidnapping, a violation of R.C. 2905.01(A)(2), a felony of

the first degree. He also appeals his convictions and sentencing on two firearm

specifications, violations of R.C. 2941.145(A), associated with his convictions on one

count of voluntary manslaughter and one count of felonious assault. He does not

appeal the convictions or sentences on the underlying charges giving rise to the

firearms specifications.

{¶2} In his first assignment of error, Appellant contends that the trial court

erred in convicting and sentencing him separately on the allied offenses of

aggravated robbery and kidnapping. In his second assignment of error, Appellant

argues that the trial court erred when it convicted and sentenced him for two firearm

specifications, as they refer to the same criminal act or transaction and should have

been merged.

{¶3} Because this record establishes that the crimes of aggravated robbery

and kidnapping were committed with separate animus, his first assignment of error is

overruled. Because the record on appeal does not demonstrate that the consecutive

sentences for the firearm specifications constitute a manifest injustice, his second

assignment of error is also overruled, and his convictions and sentences are

affirmed.
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{¶4} On December 13, 2007, Appellant was indicted on one count of

aggravated murder, a violation of R.C. 2903.01(B), a felony of the first degree, one

count of aggravated robbery, one count of kidnapping, and one count of felonious

assault, with the attendant firearm specifications on each count. The first three

charges arose out of an armed robbery gone awry that resulted in the death of James

Dow. (Sentencing Tr., p. 2.) The felonious assault charge was based on the nonfatal

shooting of Emanuel Bunkley.

{¶5} On March 14, 2008, Appellant pleaded guilty to the amended charge of

voluntary manslaughter, as well as the original aggravated robbery, kidnapping, and

felonious assault charges. He also pleaded guilty to the firearms specifications

relating to the voluntary manslaughter and felonious assault charges. In addition to

amending the aggravated murder charge, the firearm specifications relating to the

aggravated robbery and kidnapping charges were dismissed in exchange for

Appellant’s plea to the remaining charges. The state recommended a maximum

aggregate sentence of thirty years of imprisonment as a part of the plea agreement.

{¶6} At the plea hearing, the trial court informed Appellant that it may be

possible that the two firearm specifications would be merged at sentencing, but that,

even if they did not merge, the trial court would not sentence Appellant to more than

thirty years of imprisonment. (Plea Tr., p. 11.)

{¶7} On May 14, 2008, Appellant was sentenced to a ten-year term of

imprisonment for voluntary manslaughter, eight-years for felonious assault, and

three-year terms each for aggravated robbery, kidnapping and the two remaining
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firearm specifications, to be served consecutively, for a thirty-year aggregate

sentence in conformance with the state’s sentencing recommendation at the plea

hearing.

ASSIGNMENT OF ERROR I

{¶8} “The trial court erred in convicting Mr. Lee of both aggravated robbery

and kidnapping, as those offenses are allied offenses of similar import, and were

committed with a single animus. (May 14, 2008 Sentencing Transcript, pp. 16-17;

May 14, 2008 Judgment Entry of Sentencing).”

{¶9} Appellant contends that the trial court erred in convicting and

sentencing him for both aggravated robbery and kidnapping because they are allied

offenses of similar import. R.C. 2941.25 reads:

{¶10} “(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.

{¶11} “(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.”
 -5-

{¶12} Courts applying R.C. 2941.25 must undertake a two-tiered analysis.

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶18, citing

State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶14.

{¶13} “ ‘In the first step, the elements of the two crimes are compared. If the

elements of the offenses correspond to such a degree that the commission of one

crime will result in the commission of the other, the crimes are allied offenses of

similar import and the court must then proceed to the second step. In the second

step, the defendant's conduct is reviewed to determine whether the defendant can be

convicted of both offenses. If the court finds either that the crimes were committed

separately or that there was a separate animus for each crime, the defendant may be

convicted of both offenses.’ ” (Emphasis sic.) Brown at ¶19, quoting State v.

Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. The Defendant bears

the burden of establishing that the two offenses are allied and that he is entitled to

protection against multiple punishments for a single criminal act. State v Mughni

(1987), 33 Ohio St.3d 65, 67, 514 N.E.2d 870.

{¶14} In State v. Rance (1999), 85 Ohio St.3d 632, 637-638, 710 N.E.2d 699,

the Ohio Supreme Court held that the first step in determining whether two offenses

are allied offenses of similar import requires comparing the statutory elements in the

abstract, rather than comparing the offenses as charged in a particular indictment. In

Cabrales, the Court rejected a strict textual comparison, where all the elements of the

compared offenses must coincide exactly, in favor of the abstract test announced in

Rance. Cabrales at ¶26.
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{¶15} The Cabrales Court fashioned a simple test: “if in comparing the

elements of the offenses, in the abstract, the offenses are so similar that the

commission of one offense will necessarily result in the commission of the other, then

the offense are allied offenses of similar import.” Cabrales at ¶26.

{¶16} Last year, the Ohio Supreme Court held that the crime of kidnapping

and the crime of aggravated robbery are allied offenses of similar import pursuant to

R.C. 2941.25. State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154,

syllabus.

{¶17} R.C. 2905.01 defines kidnapping as follows:

{¶18} “(A) No 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, for any of the following purposes:

{¶19} “* * *

{¶20} “(2) To facilitate the commission of any felony or flight thereafter.”

{¶21} R.C. 2911.01 defines aggravated robbery as follows:

{¶22} “(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:

{¶23} “(1) Have a deadly weapon on or about the offender’s person or under

the offender’s control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it.”
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{¶24} Applying the test announced in Cabrales, the Wynn Court reasoned

that, “[i]t is difficult to see how the presence of a weapon that has been shown or

used, or whose possession has been made known to the victim during the

commission of a theft offense, does not also forcibly restrain the liberty of another.”

Id. at ¶21.

{¶25} However, Appellant may still be convicted of both offenses, where he

committed the crimes with separate animus. In State v. Logan (1979), 60 Ohio St.2d

126, 135, 397 N.E.2d 1345, the Ohio Supreme Court held that:

{¶26} “(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;

{¶27} “(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.” Id. at syllabus.

{¶28} Courts concluding that separate animus existed for kidnapping and

rape charges have most often relied on the “substantial increase in risk of harm

separate and apart” language from Logan to support their decisions. See e.g., State

v. Butts, 9th Dist. No. 24517, 2007-Ohio-6430 (victim choked and knife held to her
 -8-

throat prior to the rape); State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059,

¶42 (victim choked by her assailant); State v. Campbell (Aug. 3, 1993), 2d Dist. No.

13138, at *3 (choke-hold characterized by the court as a potentially lethal form of

restraint).

{¶29} Approximately one month prior to oral argument in this case, the Ohio

Supreme Court issued its decisions in State v. Whitfield, Slip Opinion No. 2010-Ohio-

2, and State v. Underwood, Slip Opinion No. 2010-Ohio-1. In Whitfield, the Court

held that, if it finds reversible error occurred in the imposition of multiple punishments

for allied offenses, a court of appeals must reverse the conviction and remand the

matter for a new sentencing hearing, where the state must be permitted to elect

which allied offense to pursue on sentencing. Whitfield at ¶1-2 of the syllabus.

{¶30} In Underwood, the Court held that R.C. 2953.08(D)(1) does not bar

appellate review of a sentence imposed for multiple convictions on offenses that are

allied because such sentences do not comport with mandatory sentencing provisions

and, consequently, are not “authorized by law.” Underwood at ¶1-2 of the syllabus.

In that case, the state conceded on appeal that the crimes at issue were allied

offenses of similar import. Id. at ¶5.

{¶31} The Ohio Supreme Court held that a trial court is obligated under R.C.

2941.25 to determine whether offenses are allied, and if they are, the court may

convict the defendant on only one offense. Id. at ¶28. The Underwood Court cited

State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶96-102, for

the proposition that imposition of multiple sentences for allied offenses of similar
 -9-

import amounts to plain error. Id. at ¶30. The Court stated, “[n]evertheless, if a trial

court fails to merge allied offenses of similar import, the defendant merely has the

right to appeal the sentence.” Id. at ¶28.

{¶32} Only two facts can be gleaned from the sentencing hearing at bar: first,

Appellant was not the person who possessed or used the firearm at issue in this

case. (Sentencing Tr., p. 14.) Also, the crime was “a violent and vicious attack

planned upon someone who was completely unsuspecting and was victimized in

several ways by the defendants who were involved in the crime.” (Sentencing Tr., p.

15.) Notably, Appellant instructed his attorney to make no statement on his behalf at

the sentencing hearing. (Sentencing Tr., p. 14.)

{¶33} Where the record on appeal does not support the conclusion that allied

offenses were committed with the same animus, appellate courts in Ohio have

refused to reverse multiple sentences for allied offenses. See State v. Adams, 2d

Dist. No. 22493, 2009- Ohio-2056, ¶16; State v. Austin, 8th Dist. No. 84142, 2004-

Ohio-5736, ¶37-38, quoting State v. Coats (Mar. 30, 1999),10th Dist. No. 98AP-927.

{¶34} However, following the issuance of Underwood, supra, Appellant filed a

transcript of the trial court’s hearing on his motion to suppress. Attached to the

transcript was a video recording of Appellant’s interrogation by the Youngstown

Police Department on December 4, 2007. At oral argument, Appellant’s counsel

relied for the first time in this appeal on Appellant’s narrative to the police to

demonstrate that there was evidence in the record that the crimes of kidnapping and

aggravated robbery were not committed with separate animus.
 -10-

{¶35} Before we consider Appellant’s statement, we first recognize that trial

courts have wide discretion in the sources and types of evidence used to assist them

in determining the kind and extent of punishment to be imposed within limits fixed by

law. Williams v. People of State of New York (1949), 337 U.S. 241, 246, 69 S.Ct.

1079, 93 L.Ed. 1337. The rules of evidence and the same due process rights that

are afforded a defendant in the guilt phase do not apply in the sentencing phase and

a judge has discretion to consider out-of-court information. Id. Likewise, the Ohio

Rules of Evidence set forth that the rules are not applicable to sentencing hearings.

See Evid.R. 101(C)(3). A trial court may even consider information during the

sentencing hearing that may have been inadmissible at trial. State v. Cassidy (1984),

21 Ohio App.3d 100, 101, 487 N.E.2d 322, citing State v. Davis (1978), 56 Ohio

St.2d 51, 381 N.E.2d 641.

{¶36} “At sentencing the court is not concerned with the guilt or innocence of

the defendant, but rather with imposing an appropriate sentence based upon the

seriousness of the crime committed and the character of the defendant.” Cassidy at

101, 487 N.E.2d 322, citing State v. Barker (1978), 53 Ohio St.2d 135, 150-151, 372

N.E.2d 1324. Consequently, we find that the trial court was permitted to consider

Appellant’s statements to the police in determining whether the aggravated robbery

and kidnapping crimes were allied offenses of similar import.

{¶37} In fact, Appellant’s recorded statement to the police reveals that the

crimes were committed with separate animus. According to Appellant’s statement, a

plot was devised to steal drugs from Mr. Dow. A person known as “Skip” lured Dow
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into an unknown residence for the purpose of buying drugs. When Dow turned the

drugs over to be weighed, Appellant and his cousin were supposed to “secure” Dow.

(Videotape at 16:28:45.) Appellant characterized their role as “the muscle.”

(Videotape at 16:23:28, 16:22:43.) However, Dow was not easily subdued.

{¶38} According to Appellant’s statement, he, his cousin, and Dow tumbled

down the steps into the basement. Appellant stated that he and his cousin were

unable to bind Dow with a rope, so they beat him with 2x4s for approximately thirty

minutes. (Videotape at 16:25:05.) According to Appellant, he and his cousin beat

Dow “half to death” before “Skip” walked down the steps and shot Dow with a .357

handgun at point blank range. (Videotape at 16:24:25, 16:36:20.)

{¶39} Clearly, Appellant’s statement to the police demonstrates that the

restraint in this case was prolonged and subjected the victim to a substantial increase

in risk of harm that was separate and apart from the harm involved in his aggravated

robbery. Accordingly, the record reflects a separate animus as to each offense

sufficient to support separate convictions.

{¶40} Because the record does not support the conclusion that the

aggravated robbery and kidnapping charges in this case were committed with the

same, single animus, Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

{¶41} “The trial court erred in sentencing Mr. Lee to consecutive terms of

imprisonment for multiple firearm specifications that should have merged, as the

underlying offenses were committed as part of the same criminal adventure. (May
 -12-

14, 2008 Sentencing Transcript, pp. 16-17; May 14, 2008 Judgment Entry of

Sentencing).”

{¶42} Because the crimes alleged in the indictment were committed on

November 18, 2007, R.C. 2929.14 as enacted on April 5, 2007 governs this case.

Both the former and current versions of R.C. 2929.14(D)(1)(a)(ii) impose a mandatory

three-year prison term when a defendant is convicted of or pleads guilty to a firearm

specification pursuant to R.C. 2941.145. Pursuant to the former version, a court was

not authorized to impose more than one sentence for multiple firearm specifications if

the specifications refer to the same criminal act or transaction. Former R.C.

2929.14(D)(1)(b).

{¶43} A “transaction” is, “a series of continuous acts bound together by time,

space, and purpose, and directed toward a single objective.” State v. Kehoe (1999),

133 Ohio App.3d 591, 616, 729 N.E.2d 431; quoting State v. Wills (1994), 69 Ohio

St.3d 690, 691, 635 N.E.2d 370. This Court has held that multiple gun specifications

involving the same act or transaction should run concurrently. State v. Herring, 7th

Dist. No. 00 JE 37, 2002-Ohio-2786. On the other hand, when multiple victims are

involved this may indicate that the offender had more than one objective, warranting

consecutive terms. State v. Gary, 8th Dist. No. 79224, 2002-Ohio-588. We have

stated that the focus should be on the defendant’s overall criminal objectives, not on

the specific animus for each crime. State v. Moore, 161 Ohio App.3d 778, 2005-

Ohio-3311, 832 N.E.2d 85, at ¶45.
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{¶44} Appellant did not object to the consecutive sentences at the sentencing

hearing, thus, he has waived all but plain error review on appeal. Crim.R. 52.

However, the imposition of multiple three year sentences if all underlying felonies

arose from the same act or transaction constitutes plain error. State v. Williams

(1996), 115 Ohio App.3d 24, 33, 684 N.E.2d 358. Under the plain error doctrine,

reversible error occurs only if, “but for the error, the outcome of the trial clearly would

have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804,

paragraph two of the syllabus.

{¶45} According to Appellant’s statements to the police, Mr. Bunkley entered

the residence through a side door while Appellant and his cousin were struggling to

secure Dow. (Videotape at 16:30:00.) Appellant stated that he had no idea what

happened to Bunkley, however, the presentence investigation report indicates that

Bunkley brought Dow to the residence, and he entered the house in search of Dow.

According to the report, Bunkley was shot when he happened on the aggravated

robbery in progress. In Herring, we cited with favor State v. Brown (Feb. 9, 2001),

6th Dist. No. WD-00-033, for the rule that two firearms specifications may be imposed

where a defendant kills a second victim solely because the second victim discovers

the first victim. Id. at *4; see also State v. Blackman, 6th Dist. No. L-01-1349, 2003-

Ohio-2216 (effort to escape after shootout with the police not part of same act or

transaction.) The same rule applies in this case, where the assault of Bunkley was

not a part of the aggravated robbery of Dow.
 -14-

{¶46} Consequently, we cannot conclude that a manifest injustice has

occurred in this case. Appellant’s second assignment of error is overruled, and his

convictions and sentences are affirmed.

Donofrio, J., concurs.

Vukovich, P.J., concurs.