State v. Donaldson

[Cite as State v. Donaldson, 2023-Ohio-3538.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1177

Appellee Trial Court No. CR0202201854

v.

Kevin Donaldson DECISION AND JUDGMENT

Appellant Decided: September 29, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and

Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

*****

DUHART, P.J.

{¶ 1} Appellant, Kevin Donaldson, appeals the July 1, 2022 decision of the Lucas

County Common Pleas Court. For the foregoing reasons, we affirm the lower court’s

decision.

STATEMENT OF FACTS

{¶ 2} On May 25, 2022, appellant was indicted on two counts; aggravated

robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(3) and (C) (Count 1)

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

and (D) (Count 2). Both counts also included a repeat violent offender specification.

{¶ 3} A jury trial began June 6, 2022. The following facts are based on testimony

obtained during trial.

{¶ 4} The victim in this case, M.H., testified that he lived at the Cherry Street

Mission on March 8, 2022. On that day, he left the Cherry Street Mission and walked to

the Lucky Dollar Store. On his way back, he was approached by a man who identified

himself as “J.D. Brown.” The man asked M.H. to light his cigarette, which he did. The

two men then engaged in a conversation that concluded with the man asking M.H. for a

couple dollars. M.H. gave the man a few dollars, tapped the man on the shoulder as “a

kind gesture” and turned around to leave, but after taking two or three steps, M.H. was

struck in the head, which caused him to fall. His assailant then “dropped their body

weight” upon M.H., and repeatedly struck him in the head. Although M.H. did not see

“J.D. Brown” hit him, M.H. believed his assailant was the man that had identified himself

as “J.D. Brown.” M.H. testified that he did not see anyone else in the vicinity at the time

of his assault. During the assault, the assailant took M.H.’s money and wallet out of his

pocket.

2.

{¶ 5} M.H. returned to the Cherry Street Mission, the police were called, and then

M.H. was transported to St. Vincent’s Hospital to receive treatment for his injuries. At

the hospital, he was diagnosed with a right zygomaticomaxillary complex fracture,

fractured nasal bones, right periorbital soft tissue swelling and a right frontal scalp

hematoma. He also had lacerations to his nose and upper lip.

{¶ 6} Officer Mitchael Vanderhorst and Officer Spencer Hastedt from Toledo

Police Department (TPD) were both dispatched to St. Vincent Hospital. M.H. provided

the officers with a description of “J.D. Brown,” describing him as a black male, bald,

about six-two, 240 pounds, in his mid-fifties, with tattoos on his hands, wearing an all red

Champion sweatsuit with black Nike tennis shoes.

{¶ 7} After receiving statements from M.H. at the hospital, Officers Vanderhorst

and Hastedt conducted a search in the vicinity of the assault. While searching the area,

the officers stopped appellant, who appeared to fit the description provided by M.H., with

the exception of a black hoodie he was wearing over a red top. The officers also noticed

dried blood on appellant’s hands and fresh abrasions and swelling on his knuckles. Other

than the dried blood on his hands, appellant looked clean.

{¶ 8} Appellant was first taken to the safety building and then transported to the

jail. As appellant needed to be “medically cleared,” he was taken to St. Vincent Hospital

for treatment of the injuries to his hands. While there, appellant stated that “he wasn’t

sure how a fistfight could turn into a charge of robbery” and he indicated that the injuries

to his hand had occurred that day.

3.

{¶ 9} On the date of the incident, M.H. was presented with a photo array that

contained six photos so M.H. might identify the potential assailant, whom M.H. believed

was “J.D. Brown.” Each photo was numbered from one to six, with appellant’s photo

assigned number two. After viewing the photo array, M.H. circled number four.

However, he told Sergeant Bortel, from TPD investigative services, that his brain was

“scrambled” and that it could have been number

two.

{¶ 10} After the state rested, appellant made a Crim.R. 29 motion for acquittal, on

the basis that the state failed to produce sufficient evidence of his identity as the

perpetrator. However, the Crim.R. 29 motion was denied. Appellant was ultimately

found guilty of Counts 1 and 2.

{¶ 11} Prior to sentencing, the parties filed sentencing memoranda regarding

whether the two convictions should merge for purposes of sentencing. At sentencing, the

court concluded that the two offenses did not merge, as appellant had not satisfied his

burden to prove that the offenses should merge.

{¶ 12} Appellant was then sentenced to serve a mandatory minimum term of 11

years and a maximum indefinite term of 16 and a half years for Count 1 (aggravated

robbery). In regards to Count 2 (felonious assault), appellant was sentenced to a

mandatory minimum term of 8 years and a maximum indefinite term of 12 years. The

court ordered these sentences to be served concurrently. Appellant was also found to be a

repeat violent offender. For the purposes of sentencing on the repeat violent offender

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specifications, Counts 1 and 2 were considered to be a single offense, and appellant was

ordered to serve a five-year term, consecutively and prior to the sentences on the

underlying felonies. Furthermore, as appellant was on post-release control for a previous

felony at the time he committed the offenses at issue here, the trial court imposed an

additional consecutive term of 966 days for the violation of post-release control. All

costs were waived.

{¶ 13} This appeal followed the trial court’s judgment.

ASSIGNMENTS OF ERROR

{¶ 14} Appellant raises the following assignments of error:

1. The trial court erred to the prejudice of Appellant in finding that

aggravated robbery and felonious assault were not allied offenses for

purposes of sentencing

2. The trial court erred in denying Appellant’s Crim.R. 29 motion.

3. The jury’s verdict was against the manifest weight of the evidence

presented at trial.

LAW AND ANALYSIS

{¶ 15} For ease of analysis, we will address appellant’s assignments of error out of

order.

Criminal Rule 29 Motion

{¶ 16} In his second assignment of error, appellant argues that the state failed to

produce sufficient evidence to identify him as the assailant and therefore erred when it

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denied his motion for acquittal. Appellant points to the fact that M.H. did not see who

actually assaulted him and identified another person, not appellant, as “J.D. Brown” in

the photo array. He also maintains that there was no video surveillance evidence and

objects to the “minimal forensic evidence,” arguing that officers did not test the blood

found on M.H.’s wallet or clothing, or the dried blood under his fingernails.

Standard of Review

{¶ 17} “The standard of review for a denial of a Crim.R. 29 motion is the same as

the standard of review for sufficiency of the evidence.” State v. Johnson, 6th Dist. Wood

Nos. WD-13-008, WD-13-009, 2014-Ohio-2435, ¶ 11, citing State v. Carter, 72 Ohio

St.3d 545, 553, 651 N.E.2d 965 (1995). When reviewing the sufficiency of the evidence,

our function is to examine the trial evidence to determine “whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684

N.E.2d 668 (1997), fn. 4.

Appellant’s Crim.R.29 motion was properly denied.

{¶ 18} M.H. provided a detailed description of “J.D. Brown,” who M.H. was

speaking with immediately before he was hit from behind. Although M.H. did not

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actually see the person that hit him, he was hit right after turning away from “J.D.

Brown” and he did not see anyone else in the vicinity. Additionally, within hours of the

assault, officers went to the area where the incident occurred, where they observed

appellant, matching the description given by M.H., with the exception of a black hoodie

he was wearing. Furthermore, appellant had fresh abrasions on his hands, which he

admitted he received from taking part in a fistfight that day.

{¶ 19} In regard to the photo array, although M.H. did not choose appellant, the

photo he chose was of an individual similar in appearance to appellant, and M.H. also

stated that his assailant could be number two, which was appellant’s assigned number in

the photo array.

{¶ 20} We find this evidence sufficient to convince a rational trier of fact of

appellant’s guilt beyond a reasonable doubt. Therefore, the motion for acquittal was

properly denied.

{¶ 21} Consequently, appellant’s second assignment of error is not well taken.

Manifest Weight of Evidence

{¶ 22} In the third assignment of error, appellant asserts that the jury’s verdict was

against the manifest weight of the evidence presented at trial, arguing that “the jury did

not fully consider all the evidence in this matter, or lack thereof, prior to determining his

guilt on the indicted charges of aggravated robbery and felonious assault.” He contends

the evidence was circumstantial, and, as with his claim of insufficient evidence, he points

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out that M.H. did not actually see who assaulted him or identify appellant in the photo

array, and that there was no video evidence, nor any forensic investigation.

Standard of Review

{¶ 23} Although we have found that appellant’s conviction is supported by

sufficient evidence, we may nonetheless find that it is against the manifest weight of the

evidence. State v. Herrera, 2022-Ohio-4769, 204 N.E.3d 1096, ¶ 37 (6th Dist.), citing

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

sufficiency of the evidence analysis “examines whether the evidence is legally sufficient

to support the verdict as a matter of law, the criminal manifest weight of the evidence

standard addresses the evidence’s effect of inducing belief.” Id., citing State v. Wilson,

113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

{¶ 24} In determining whether appellant’s conviction is against the manifest

weight of the evidence, we must review the record, weigh the evidence and all reasonable

inferences drawn from that evidence, consider the credibility of the witnesses and decide,

in resolving any conflicts in the evidence, whether the trier of fact “clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.” State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943

N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387. We do not view the evidence in

a light most favorable to the state; rather, we “sit as a ‘thirteenth juror’ and scrutinize ‘the

factfinder’s resolution of the conflicting testimony.’” State v. Lewis, 6th Dist. Lucas No.

L-21-1248, 2022-Ohio-4421, ¶ 22, quoting State v. Robinson, 6th Dist. Lucas No. L-10-

8.

1369, 2012-Ohio-6068, ¶ 15. Only in “the exceptional case in which the evidence weighs

heavily against the conviction” is a conviction reversed on manifest weight grounds. Id.,

quoting Thompkins at 387.

The jury’s verdict was fully supported by the manifest weight of the evidence.

{¶ 25} As previously discussed, M.H. provided a detailed description of “J.D.

Brown,” who M.H. was speaking with immediately before he was hit from behind.

Although M.H. did not actually see “J.D. Brown” hit him, M.H. was hit after turning

away from “J.D. Brown” and taking only two or three steps and he did not see anyone

else in the vicinity.

{¶ 26} Further, appellant was found near the location where the incident occurred,

matching the description given by M.H. Appellant also had abrasions on his hand that he

admitted to getting that day while in a fistfight. Although the victim did not choose

appellant in a photo array, the photo that he did choose was very similar to appellant’s

photo, and he stated that it could be appellant. While appellant claims that the evidence

is circumstantial evidence, the Ohio Supreme Court has held that “circumstantial

evidence inherently possesses the same value as direct evidence.” State v. Davis, 76

Ohio St.3d 107, 115, 666 N.E.2d 1099 (1996), citing Jenks, 61 Ohio St.3d at paragraph

one of the syllabus, 574 N.E.2d 492.

{¶ 27} For these reasons, we find the jury’s verdict was not against the manifest

weight of the evidence. Therefore, appellant’s third assignment of error is not well taken.

9.

Allied Offenses

{¶ 28} In his first assignment of error, appellant argues that the trial court erred in

finding that aggravated robbery and felonious assault were not allied offenses for the

purpose of sentencing. He contends that the offenses were perpetrated during a single

course of action with a single animus, and therefore, they should have been merged.

Standard of Review

{¶ 29} We review de novo a trial court's ruling as to whether offenses should be

merged as allied offenses of similar import under R.C. 2941.25. State v. Smith, 2023-

Ohio-866, 210 N.E.3d 1177, ¶ 10 (6th Dist.), citing State v. Bailey, Slip Opinion No.

2022-Ohio-4407, ¶ 6.

The trial court properly found aggravated robbery and felonious assault

to be non-allied offenses for the purposes of sentencing.

{¶ 30} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, which is applied to Ohio citizens through the Fourteenth Amendment, as

well as Article I, Section 10 of the Ohio Constitution, protect against, inter alia, multiple

punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, ¶ 10. R.C. 2941.25 codifies when multiple punishments can be imposed,

and states that:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

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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.

{¶ 31} Due to the fact that “the prosecution selects the charges that may be

brought based upon the criminal conduct of an accused and that conduct may potentially

support convictions of multiple offenses,” it must be determined “whether the conduct of

the accused can be construed to constitute a single or more than one offense.” Ruff at ¶

13. Because R.C. 2941.25 focuses on a defendant’s conduct, it is dependent upon the

facts of a particular case. Id. at ¶ 26.

{¶ 32} We ask three questions when determining whether appellant’s conduct

supports multiple offenses: “(1) Were the offenses dissimilar in import or significance?

(2) Were they committed separately? and (3) Were they committed with separate animus

or motivation.” Ruff at ¶ 31. An affirmative answer to any of these questions will allow

separate convictions. Id. The defendant bears the burden to establish that R.C. 2941.25

prohibits multiple punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-

4982, 999 N.E.2d 661, ¶ 18.

11.

{¶ 33} Applying the Ruff analysis, we find that appellant’s conduct supports

multiple offenses. We find that the two offenses were committed with a separate animus.

{¶ 34} In State v. Martin, 6th Dist. Lucas No. L-19-1133, 2021-Ohio-1615, ¶ 38,

this court concluded that aggravated robbery and felonious assault were committed with a

separate animus “[w]here a victim was first severely beaten, and then robbed.” Here,

M.H. was first severely beaten upon the head, resulting in hospitalization, and then was

robbed when appellant took the wallet and money out of the victim’s pocket. The

evidence supports a finding that an initial attack occurred when M.H. was struck, and

once on the ground, another attack occurred when M.H.’s wallet and money were taken

by appellant.

{¶ 35} Furthermore, in State v. Johnson, 6th Dist. Lucas No. L-16-1282, 2018-

Ohio-1657, ¶ 45, we found that that “[w]here a defendant uses more force than necessary

to complete aggravated robbery, he shows separate animus.” Such is also the case here.

M.H. is a disabled man, who fell to the ground after the first hit, and then continued to be

hit, receiving several fractures to his nose and right orbital socket from the assault.

Considering these facts, appellant used more force than necessary to complete the offense

of aggravated robbery. Therefore, the evidence supports a finding that the offenses were

committed with a separate animus.

{¶ 36} In addition, the evidence also supports a finding that dissimilar import

existed, as the harm that resulted from each offense was separate and identifiable.

Dissimilar import exists “when the defendant’s conduct constitutes offenses involving

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separate victims or if the harm that results from each offense is separate and identifiable.”

Ruff at ¶ 26. The felonious assault resulted in the harm of serious physical injuries to

M.H., leading to his hospitalization, while the harm that resulted from the aggravated

robbery was the taking of his property; his wallet and money. Therefore, the harm

resulting from each offense was separate and identifiable.

{¶ 37} Consequently, the separate convictions are permitted and the offenses

should not have merged.

{¶ 38} The first assignment of error is not well taken.

CONCLUSION

The judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant

to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.

See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________

JUDGE

Gene A. Zmuda, J.

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR.

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.

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