Opinion
L-22-1164 L-22-1165
07-14-2023
State of Ohio Appellee v. Anne Hair Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee. Henry Schaefer, for appellant.
Trial Court No. CR0202002673, CR0202102355
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
DECISION AND JUDGMENT
ZMUDA, J.
I. Introduction
{¶ 1} In this consolidated appeal, appellant, Anne Hair, appeals the judgment of the Lucas County Court of Common Pleas, sentencing her to an aggregate term of 29 years, 4 months, to life in prison after a jury found her guilty of murder, felonious assault, prohibition against companion animals, aggravated arson, and tampering with evidence. For the following reasons, we find that the trial court committed plain error in failing to determine that felonious assault and murder are allied offenses of similar import in this case. We find no other error in the proceedings below. Consequently, we affirm, in part, and reverse, in part, and remand this matter to the trial court for resentencing with instructions to merge the felonious assault and murder counts and permit the state to elect which allied offense it will pursue against appellant.
A. Facts and Procedural Background
{¶ 2} On December 22, 2020, appellant was indicted in case No. CR-20-2673, and charged with one count each of aggravated murder in violation of R.C. 2903.01(B) and (G), an unclassified felony, aggravated robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first degree, murder in violation of R.C. 2903.02(B) and 2929.02, an unclassified felony, felonious assault in violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree, and prohibitions concerning companion animals in violation of R.C. 959.131(C) and 959.99(E)(2), a felony of the fifth degree. These charges stemmed from the October 19, 2020 stabbing death of Anthony Banks and injuries sustained by Banks' dog. The incident occurred at a residence located at 1270 Norwood Avenue in Toledo, Ohio.
{¶ 3} On December 29, 2020, appellant appeared remotely before the trial court for arraignment. She entered a plea of not guilty to the foregoing offenses and the matter then proceeded through pretrial discovery.
{¶ 4} On August 26, 2021, while CR-20-2673 was still pending in the trial court, appellant was indicted a second time in case No. CR-21-2355, and charged with one count each of aggravated arson in violation of R.C. 2909.02(A)(2), (B)(1) and (3), a felony of the second degree, arson in violation of R.C. 2909.03(B)(1), (D)(1), and (D)(2)(b), a felony of the fourth degree, and tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree. The charges arose as a consequence of an alleged arson that took place at the residence on 1270 Norwood Avenue on October 31, 2020.
{¶ 5} On September 1, 2021, the state filed a motion for joinder of offenses pursuant to Crim.R. 8(A), seeking an order joining case Nos. CR-20-2673 and CR-21-2355 because "[e]ach of the offenses alleged involve the same alleged victim, and the facts alleged in CR-21-2355 are directly related to the facts alleged in CR-20-2673."
{¶ 6} Appellant entered a plea of not guilty to the charges at issue in case No. CR-21-2355 at her September 3, 2021 arraignment. Thereafter, on October 14, 2021, the trial court granted the state's motion for joinder and ordered the cases to be tried together.
{¶ 7} On February 22, 2022, appellant filed a motion to suppress evidence, including a blue fuel container allegedly used in connection with the arson, which she argued was unlawfully obtained following the Toledo Police Department's November 4, 2020 seizure of her automobile, a 2007 Ford Edge. Although the search of appellant's vehicle was performed pursuant to a search warrant, appellant argued that the warrant was improperly obtained based upon a fraudulent warrant affidavit from detective Danielle Mooney. According to appellant: "There was no basis to search [her] vehicle for a blue can without a Search Warrant. The only logical conclusion that can be drawn from the evidence herein is that the police had already searched the vehicle and were aware of a blue can prior to securing the Search Warrant."
{¶ 8} On March 1, 2022, the state filed its memorandum in opposition to appellant's motion to suppress. In its memorandum, the state argued that its search warrant was properly issued based upon Mooney's affidavit. Specifically, the state asserted that a witness represented to Mooney, on November 6, 2020, that "there should be a blue gas can in the rear of the vehicle that was towed by police. The blue gas can reportedly contained [accelerants] used in the arson at 1270 Norwood." Based upon this statement and "other information obtained during the investigation," the state argued that the issuing judge had sufficient information from which to conclude that the warrant request was supported by sufficient probable cause.
{¶ 9} On April 5, 2022, the trial court held a hearing on appellant's motion to suppress. Mooney was the only witness to testify at the hearing. During her testimony, Mooney stated that she was responsible for investigating the stabbing that culminated in Banks' death. In connection with her investigation, Mooney interviewed a witness, April Lewis, on three occasions.
{¶ 10} The first interview took place at Lewis's home on November 4, 2020. The audio of this interview was recorded. Two days later, Lewis phoned Mooney and provided Mooney with additional information about the arson that occurred at the Norwood residence. Relevant here, Lewis informed Mooney that a blue oil can used in the arson was located in appellant's vehicle that police impounded on November 4, 2020.
{¶ 11} The second conversation between Lewis and Mooney was not recorded. Mooney explained that her desk phone does not have a recording function, and although a portable audio recorder was available to her at the time, she did not record the second interview with Lewis because "[i]t was an impromptu conversation" and she opted to take handwritten notes instead.
{¶ 12} Using the information she received from Lewis, Mooney prepared a request for a search warrant and a supporting affidavit, in which she sought to search appellant's vehicle. Mooney's request was granted, and she executed the search warrant on November 9, 2020. During her search of appellant's vehicle, Mooney retrieved a "blue Argon oil container that's a pretty big container that had trace amounts of accelerant on it." Mooney testified that the evidence she recovered from appellant's vehicle was consistent with the information Lewis provided to her prior to the search. On redirect examination, Mooney explained that the blue oil can was located in the storage area of appellant's vehicle, in plain view through the rear window of the vehicle. She further testified that appellant's vehicle was not searched by her or anyone else at the Toledo Police Department prior to the issuance of the search warrant authorizing such a search.
{¶ 13} On August 5, 2021, Mooney had a third conversation with Lewis. During the conversation, which was not recorded, Lewis informed Mooney that appellant's brother, Jeffery,
had been getting phone calls the day of the arson. [Lewis] didn't know specifically what they entailed, but they were repeated phone calls, and that [Jeffery] was going to do something for [appellant], and then later on [Lewis] said that weeks later [Jeffery] admitted to doing the arson, almost threatening her, like if I did that arson I could do it again, cause they were having an argument. So [Lewis] thought that was important information, and she said that it was - [Jeffery] had said that it was his stepdad and [appellant] that had committed the arson to cover up any evidence that we may have not gotten up to that point.
{¶ 14} After Mooney's testimony was complete, the parties each provided arguments to the trial court. For its part, the state argued that the search warrant issued in this case was supported by probable cause. To support its argument, the state relied upon Mooney's testimony that Lewis called her and informed her of the blue oil can and appellant's use of the can in facilitating the arson at the Norwood residence. In response, appellant's defense counsel argued that suppression was warranted because the conversation between Mooney and Lewis on November 6, 2020, was not recorded and thus Lewis's statements regarding the blue oil can could not be verified apart from Mooney's testimony.
{¶ 15} Upon consideration of the parties' arguments, the trial court found that the state proved that there was sufficient probable cause to support the search warrant. In so ruling, the trial court provided little explanation, but indicated: "this is not a close issue for me at all."
{¶ 16} Seven weeks after the trial court denied appellant's motion to suppress, the matter proceeded to a two-day jury trial. During the trial, the state called 13 witnesses; appellant called none.
{¶ 17} For its first witness, the state called Lucas County Emergency Services dispatcher Moneick Alford. Alford authenticated audio recordings of two 911 calls relevant to this case. The first call was received on October 19, 2020, at 2:29 p.m. According to Alford, this call originated from a mobile phone located at the Norwood residence. During the 911 call, the caller reported discovering Banks unresponsive with apparent stabbing injuries, and the caller surmised that Banks had deceased.
{¶ 18} The second call was received on October 31, 2020, at 8:30 p.m. The second call originated from a mobile phone positioned at the intersection of Oakwood and North Detroit in Toledo. During this 911 call, the caller reported the smell of "burning house wood" and light grey smoke in his vicinity. At the time, the caller reported that he could not see any flames in the area.
{¶ 19} After Alford authenticated the audio recordings of the 911 calls, the state moved to admit them as evidence and publish them to the jury. Without objection from appellant, the trial court allowed the recordings into evidence and played them for the jury.
{¶ 20} The state's second witness was officer Daniel Revill of the Toledo Police Department. On October 19, 2020, Revill was dispatched to 1270 Norwood after Toledo Police received the 911 call reporting that a stabbing had occurred at that location. When he arrived, Revill entered the home through an opened front door and observed Banks' body lying "face-down, kind of in the transition between the living room and the kitchen. He was covered in dried blood and had a large knife laying next to him." Revill and his partner proceeded to search the rest of the home for any other individuals. No other individuals were present. During the search, Revill discovered a dog in the kitchen that was injured and "covered in blood."
{¶ 21} The state's third witness was detective Jeffery Jackson of the Toledo Police Department's Crime Scene Investigations Unit. Jackson responded to the Norwood residence on October 19, 2020, to investigate a suspected homicide. Upon entering the residence, Jackson proceeded to take several photographs of the crime scene, which he authenticated at trial prior to their admission without objection from appellant's defense counsel. In general, the photographs depict the common areas of the home in a state of disarray. The dining table was broken, tables were overturned, and a window was broken from the inside. Additionally, there were blood stains throughout the home, Banks was lying face down and covered in blood, and Banks' dog was covered in blood with lacerations in several places.
{¶ 22} Jackson testified that swabs of blood from the interior door handle of the residence and a pair of black women's shorts were retrieved from the scene and later tested by the Ohio Attorney General's Bureau of Criminal Investigation ("BCI"). Later, Jackson attended Banks' autopsy and collected a DNA standard from Banks' body as well as several samples for further BCI analysis.
{¶ 23} As its fourth witness, the state called Mollie Jordan. Jordan works in the State Fire Marshal's forensic lab as a criminalist, where she analyzes evidence recovered from suspected arson crime scenes. In this capacity, Jordan investigated the fire that occurred at the Norwood residence on October 31, 2020, and prepared a report summarizing her findings. According to Jordan, her investigation led her to examine the blue fuel container recovered from appellant's vehicle. She analyzed the contents of the container, which tested positive for ethanol and gasoline although there was no such material present in liquid form. Latent fingerprints and DNA swabs were also retrieved from the container and sent to BCI for further testing.
{¶ 24} Next, the state called officer Kyle Asher of Lucas County Canine Care and Control as its fifth witness. Asher responded to the Norwood residence on October 19, 2020, in response to a dispatch received from the Toledo Police Department. Upon arrival, Asher learned that Banks' dog was badly injured. Consequently, Asher removed the dog from the residence and transported the dog to a nearby animal hospital. After two days, the dog was released and subsequently adopted.
{¶ 25} Detective Anthony Sosko of the Toledo Police Department was the state's sixth witness to testify. Sosko's involvement in this case was limited to the blind administration of a photo array to Banks' sister-in-law, Dionne James, on November 4, 2020. When he administered the array, Sosko did not know the identity of the suspect, whether the suspect was pictured on the array, or what crime was under investigation. Ultimately, James made an "immediate identification" of appellant as the individual who was present with Banks shortly before he died.
{¶ 26} Following Sosko's testimony, the state called James as its seventh witness. James testified that she observed appellant and Banks with one another on the morning of the stabbing. At around 6:30 a.m., James witnessed appellant, with whom she had prior interactions on multiple occasions, exit Banks' vehicle and enter into a known drug house. James proceeded to approach the vehicle and engaged Banks in a brief discussion. When appellant returned, appellant directed James to "get away from the car." Eventually, appellant and Banks departed. That was the last time James saw Banks alive. She learned of Banks' passing approximately two hours later.
{¶ 27} For its eighth witness, the state called April Lewis. Lewis began her testimony by indicating that she was acquainted with appellant, having dated appellant's brother, Jeffrey, during the timeframe relevant to this case. On the night of the stabbing, at approximately 10:30 p.m., Lewis and Jeffrey were approached by appellant as they were traveling to the liquor store. The couple entered appellant's vehicle, with Jeffrey sitting in the front passenger seat and Lewis sitting directly behind appellant in the rear. Appellant, who was using cocaine and marijuana at the time, then confessed to Jeffrey and Lewis that she stabbed her friend because he would not give her any money. Specifically, Lewis testified:
Lewis testified that Jeffrey was also using marijuana and cocaine. Lewis denied using any drugs at the time, stating: "I don't do drugs at all, I have heart failure."
Okay, so we get in the car and she's telling us - well, her - she said she took all the money off her debit card she could take off because she just got her * * * P-U-A or whatever. Okay, but she went over her friend (sic) house and - to get some money from him, he wouldn't give her no (sic) money. So then * * * she said she goes over her friend's house and her and him get into an altercation because she wants to get some money from him, I guess he has $1,000 he wouldn't give her and she winds up attacking him.
And the dog started barking and - while she was attacking him and stabbing him, and she wound up stabbing the dog because the dog wouldn't shut up. And then she said, if it was a kid there the kid could have got it too. * * * That was her exact words.
{¶ 28} At the time of appellant's confession, Lewis was unaware of the identity of appellant's "friend." Lewis testified that she had never met Banks and "never knew about [appellant's] relationships or nothing." Further, Lewis stated that she has never visited the Norwood residence.
{¶ 29} The next time Lewis heard from appellant was on November 3, 2020. On that day, appellant called Lewis and asked her to "pick her kids up and meet her at her mom's." According to Lewis, appellant stated that she "had to get out of town." Lewis and Jeffrey proceeded to appellant's location and helped pack clothes and video games for appellant's children. Lewis drove her vehicle and Jeffrey drove appellant's vehicle.
{¶ 30} During the ensuing interaction, appellant directed Lewis and Jeffrey to "get rid of the gas can because the gas can in the back of the trunk of [appellant's] SUV could link her back to the murder and an arson." Lewis clarified at trial that there was a blue fuel container in appellant's vehicle at the time of this interaction. Lewis further indicated that appellant explained why she committed the arson, as follows:
I got told by [appellant] that she set a fire because - this is why she set the fire, was because she left - if y'all didn't find * * * some kind of DNA
there on the scene. I don't know if she broke a nail, she lost a ring. She said she did something, and it was still there because you all would have * * * had her locked up if you would have had that evidence.
So she went back to burn the scene up because y'all, obviously, didn't find it or y'all would have * * * arrested her, she said.
{¶ 31} After making the foregoing statements, appellant and her children departed. Lewis then went with Jeffrey to his apartment, where she rummaged through appellant's vehicle, removing air fresheners, scented oils, and mobile phone chargers. At that time, Lewis observed that there was a blue fuel container in the back of appellant's vehicle, which she identified as the fuel container authorities later recovered from the vehicle and entered into evidence. Lewis did not remove the fuel container from the vehicle, but instead told Jeffrey that "it's his sister, he can get rid of that." Thereafter, Lewis went home because she "didn't want nothing to do with that case."
{¶ 32} Following the conclusion of Lewis's testimony, the state called detective Danielle Mooney of the Toledo Police Department as its ninth witness. As a homicide detective, Mooney was ordered to investigate the stabbing that occurred in this case. Consequently, she visited the Norwood residence on the day of the stabbing. Upon arrival, Mooney first focused upon Banks' dog and whether the dog was still alive. After discovering that the dog was alive, Mooney summoned assistance.
Mooney subsequently adopted Banks' dog after the dog received necessary medical care.
{¶ 33} At the outset of her investigation, Mooney was uncertain as to the identify of Banks' assailant. Over time, however, she began to develop a suspect known as "Mississippi" or "Keisha." On October 24, 2020, Banks' brother, Ernest, engaged in a text message conversation with Mooney. During the conversation, Ernest indicated that he made contact with the suspect and sent Mooney a photograph of appellant.
{¶ 34} Thereafter, appellant contacted Mooney, identified herself as Keisha Davis, and arranged a meeting with Mooney. On November 3, 2020, appellant met with Mooney for an interview at the Toledo Safety Building. The recorded interview was admitted into evidence without objection and published for the jury.
{¶ 35} During the interview, appellant agreed to provide a DNA sample to Mooney. Further, she admitted to having used drugs with Banks for 30 minutes early in the morning on October 19, 2020, but insisted that Banks dropped her off at her home and picked up another woman prior to 6:00 a.m. Appellant stated that she has never been inside Banks' residence on 1270 Norwood.
{¶ 36} Malorie Kulp was the tenth witness to testify during the state's case-in-chief. Kulp works as a forensic scientist in BCI's DNA laboratory. After explaining the procedure BCI uses to analyze DNA samples in general, Kulp revealed the results of DNA testing she conducted on the samples submitted by the state. Kulp indicated that her DNA analysis revealed the existence of a DNA consistent with appellant's DNA profile to a probability of between one in 800,000,000,000 to 1 in 1,000,000,000,000 unrelated individuals on several samples, including a bite mark left on Banks' left hand, the interior door handle of the Norwood residence, the black women's shorts recovered from inside the residence, and the blue fuel container retrieved from the rear of appellant's vehicle.
{¶ 37} As its eleventh witness, the state called the Lucas County Coroner, Diane Scala-Barnett. Scala-Barnett performed the autopsy on Banks on October 20, 2020. During the autopsy, Scala-Barnett observed four stab wounds on Banks' body, one combined stabbing cut wound and nine defense wounds, leading her to conclude that "Banks has died as a result of multiple stab and cut wounds."
{¶ 38} For its twelfth witness, the state called officer Benjamin Cousino of the Toledo Police Department's Crime Scene Investigation Unit. Cousino's involvement in this case was limited to the search of appellant's vehicle at the Toledo Police Department's impound lot. During his search, Cousino took several photographs of the vehicle and gathered certain pieces of evidence so that they could be tested for the presence of DNA. Cousino testified that he observed the blue fuel container immediately upon opening the rear hatch of appellant's vehicle.
{¶ 39} Following Cousino's testimony, the state called battalion chief Michael Posadny of the Toledo Fire and Rescue Department for its thirteenth and final witness. On October 31, 2020, Posadny was dispatched to the Norwood residence to respond to reports of a structure fire at that location. Upon arrival, Posadny noticed that the smoke surrounding the residence was so thick that one could not see the structure. Once the smoke was sufficiently cleared, Posadny investigated the source of the fire. He testified that he "could see the burn from the basement." Eventually, fire officials determined that the fire, which was spreading throughout every wall in the residence, could not be fully contained and that the residence was structurally unsound. Consequently, the firefighters on site were ordered out of the residence. The fire was ultimately extinguished, but the residence was a "total loss."
{¶ 40} At the conclusion of Posadny's testimony, the state requested admission of its exhibits and rested. Thereafter, appellant moved for an acquittal on all charges under Crim.R. 29. The trial court summarily denied appellant's motion. Thereafter, the matter proceeded to closing arguments. The jury then received instructions and began its deliberations. Ultimately, the jury found appellant guilty of murder, felonious assault, cruelty to companion animals, aggravated arson, and tampering with evidence. The jury found appellant not guilty of aggravated murder, aggravated robbery, and arson. Upon accepting the jury's verdict, the trial court continued the matter for sentencing and ordered the preparation of a presentence investigation report.
{¶ 41} Appellant's sentencing hearing was held on June 10, 2022. The court then heard statements from defense counsel and Ernest. Appellant elected not to give any statement at sentencing. Thereafter, the trial court sentenced appellant to prison terms of 15 years to life for murder, six to nine years for felonious assault, ten months for prohibition against companion animals, six to nine years for aggravated arson, and 18 months for tampering with evidence. The court then ordered appellant to serve her sentences for murder and felonious assault concurrently. The court also ordered appellant to serve her sentences for aggravated arson and tampering with evidence concurrently with one another, but consecutive to the sentences imposed for murder and felonious assault. Finally, the court ordered appellant to serve the sentence for prohibition against companion animals consecutively to the other sentences, for an aggregate sentence of 29 years, 4 months, to life in prison.
{¶ 42} In support of its imposition of consecutive sentences, the trial court found, both at the sentencing hearing and in its sentencing entry, that consecutive sentences are necessary to protect the public from future crime or to punish appellant and are not disproportionate to the seriousness of appellant's conduct or the danger she poses to the public. The court also found that the offenses were committed as one or more courses of conduct and the harm caused was so great and unusual that no single prison term for any such offense committed as part of the course of conduct adequately reflects the seriousness of appellant's conduct.
{¶ 43} On July 13, 2022, appellant timely appealed case Nos. CR-20-2673 and CR-21-2355. On July 22, 2022, we ordered these separate actions consolidated for purposes of appeal.
B. Assignments of Error
{¶ 44} On appeal, appellant assigns the following errors for our review:
I. The trial court erred when it failed to merge the murder and felonious assault charges for sentencing.
II. The convictions were against the manifest weight of the evidence, and there was not sufficient evidence to result in conviction.
III. The court erred in denying the motion to suppress. For ease of discussion, we will address appellant's assignments of error in reverse order.
II. Analysis
A. Motion to Suppress
{¶ 45} In her third assignment of error, appellant argues that the trial court erred in denying her motion to suppress.
{¶ 46} Our review of the trial court's denial of appellant's motion to suppress "presents a mixed question of law and fact." State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court's factual findings if they are supported by competent credible evidence, and "independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 47} The Fourth Amendment to the United States Constitution, and Article I, Section 14 of the Ohio Constitution, prohibit unreasonable searches and seizures, and provide that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
{¶ 48} Here, appellant's motion to suppress was premised upon her contention that the search warrant authorizing the Toledo Police Department to search her vehicle was improperly obtained based upon a fraudulent warrant affidavit from detective Danielle Mooney. While she challenged Mooney's credibility and the factual accuracy of Mooney's statement, appellant did not assert that the affidavit lacked indicia of probable cause on its face.
{¶ 49} Nonetheless, appellant argued that Mooney's affidavit was unreliable because it referenced statements Lewis made to Mooney that were not recorded. After hearing testimony from Mooney, the trial court denied appellant's motion and found no support for appellant's contention that Mooney's affidavit was unreliable merely because it was based on unrecorded witness statements.
{¶ 50} Appellant raises the same argument here concerning unrecorded witness statements, while acknowledging in her brief that the trial court "properly applied current and long-standing law that police interaction need not be recorded." Citing reports from the Gallup polling organization showing a decline in Americans' confidence in the police, appellant asks this court to overturn existing law because "[p]ublic policy and the Constitution demand that this law be changed." According to appellant, the issue is not whether "individual officers are honest or nor - the public perception is that they are not. * * * Prudent men, rightly or wrongly, no longer believe the police. An easily obtained recording would restore the prudence of this belief, and Courts should not require it."
{¶ 51} Appellant's argument on appeal distills to a public policy argument. We reject this argument out of hand as it conflates the respective roles of courts and legislatures under our constitutional system and violates the separation of powers outlined in both the United States Constitution and the Ohio Constitution.
{¶ 52} "It is not the role of the courts 'to establish legislative policies or to second-guess the General Assembly's policy choices.'" Stetter v. R.J. Corman Derailment Services, L.L.C, 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212. "A fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch of government is 'the ultimate arbiter of public policy.'" Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. "In fulfilling that role, the legislature is entrusted with the power to continually refine Ohio's laws to meet the needs of our citizens." Stetter at ¶ 34, citing Arbino at ¶ 21.
{¶ 53} While appellant's argument may carry weight as a matter of public policy, it is misplaced on this forum. Neither this court nor the trial court is free to disregard the law enacted by the General Assembly unless said law in unconstitutional. Appellant has advanced no argument calling into question the constitutionality of existing law permitting the use of unrecorded witness statements to support an officer's request for a search warrant. Accordingly, we find that the trial court did not err in denying appellant's motion to suppress, and her third assignment of error is consequently not well-taken.
B. Sufficiency / Manifest Weight of the Evidence
{¶ 54} In her second assignment of error, appellant argues that her convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.
{¶ 55} Sufficiency of the evidence and manifest weight of the evidence are related, but distinct, concepts. In reviewing a record for sufficiency, "[t]he 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.
{¶ 56} By contrast, when reviewing a manifest weight claim, we sit as a "thirteenth juror." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Our role in conducting a manifest weight review is to determine "whether in resolving conflicts in the evidence, 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." Id. We reverse a conviction on manifest weight grounds for only the most "exceptional case in which the evidence weighs heavily against the conviction." Id. at 387.
{¶ 57} Here, appellant was convicted of five offenses. First, she was convicted of murder in violation of R.C. 2903.02(B), which states that "[n]o person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code." Second, appellant was convicted of felonious assault under R.C. 2903.11(A)(1), which prohibits knowingly causing serious physical harm to another or to another's unborn. Third, appellant was convicted of prohibition against companion animals in violation of R.C. 959.131(C), which states: "No person shall knowingly cause serious physical harm to a companion animal." Fourth, appellant was convicted of aggravated arson in violation of R.C. 2909.02(A)(2), which provides:
(A) No person, by means of fire or explosion, shall knowingly do any of the following:
(2) Cause physical harm to any occupied structure.Fifth, appellant was convicted of tampering with evidence in violation of R.C. 2921.12(A)(1), which states:
(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.
{¶ 58} At trial, the state introduced extensive evidence establishing that Banks was stabbed to death while in his Norwood residence on October 19, 2020. Further, the state's evidence showed that Banks' dog was stabbed several times and largely unresponsive when police arrived on the scene. Indeed, officer Revill testified that he observed Banks lying face down in a pool of dried blood with a large knife lying next to him when he first entered the Norwood residence. During the search, Revill found Banks' dog injured and "covered in blood" in the kitchen of the residence. Pictures of Banks, his residence, and his dog were entered into evidence at trial. Those photographs confirm that Banks and his dog suffered from multiple stab wounds, and the home appeared in a condition consistent with a struggle. Further, doctor Scala-Barnett testified that Banks suffered from defensive wounds consistent with a struggle prior to his death.
{¶ 59} Appellant recognizes that the foregoing evidence demonstrates that Banks was murdered and that Banks' dog was stabbed. Nonetheless, she contests the state's evidence as to the identification of the assailant. Further, she contests the evidence linking her to the arson that took place at the Norwood residence.
{¶ 60} On the issue of identity, Lewis provided testimony at trial that appellant confessed to stabbing Banks because he refused to give her money and then stabbing Banks' dog because the dog would not stop barking. While appellant told detective Mooney that she had never been inside the Norwood residence, the DNA evidence collected from the residence prior to the arson revealed that appellant had, in fact, been inside prior to Banks' death. In addition, James identified appellant as someone who was with Banks shortly before he died. Specifically, James testified that she observed appellant with Banks at 6:30 a.m. on the morning of the stabbing, which was the last time she saw Banks alive.
{¶ 61} Taken together, the foregoing evidence is sufficient to establish appellant as the individual who stabbed Banks and Banks' dog on October 19, 2020, and started the fire at the Norwood residence on October 31, 2020, in order to destroy evidence of the stabbing. Appellant acknowledges that the testimony provided by Lewis implicates her as the assailant and arsonist, but urges us to ignore such evidence because "Ms. Lewis had motive to fabricate her testimony to seek revenge on [appellant's brother]" because he allegedly gave Lewis a venereal disease. There is no evidence in the record to support appellant's allegation that Lewis fabricated her testimony at trial. Moreover, any motive for doing so was explored by appellant's trial counsel, and apparently dismissed by the jurors who heard Lewis's testimony and observed her demeanor at trial.
{¶ 62} Taken as a whole, we find that there is sufficient evidence to support appellant's convictions. Moreover, we do not find that this is the exceptional case in which the evidence weighs heavily against the conviction. Accordingly, appellant's second assignment of error is not well-taken.
C. Merger Issues
{¶ 63} In her first assignment of error, appellant argues that her convictions for felonious assault and murder should have merged as allied offenses of similar import. Likewise, she argues that aggravated arson and tampering with evidence were allied offenses of similar import subject to merger.
{¶ 64} Appellant's argument implicates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, made applicable to the state through the Fourteenth Amendment. It provides several protections, including the protection against multiple punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Ohio General Assembly has codified this protection by enacting R.C. 2941.25, which "directs when multiple punishments may be imposed," and "prohibits multiple convictions for allied offenses of similar import arising out of the same conduct." State v. Smith, 2023-Ohio-866,___N.E.3d___, ¶ 8 (6th Dist), citing Ruff at ¶ 10. Specifically, R.C. 2941.25, 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.
{¶ 65} In Ruff the Ohio Supreme Court set forth the following three-part test to determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant'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? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.Id. at ¶ 31. The court explained that offenses are of dissimilar import "when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at ¶ 23. The allied offenses analysis focuses on the conduct of the defendant, not merely the elements of the offenses at issue. Id. at ¶ 30.
{¶ 66} "The defendant bears the burden of establishing that R.C. 2941.25 prohibits multiple punishments." Smith at ¶ 10, citing State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. Whether offenses are allied offenses of similar import subject to merger under R.C. 2941.25 is a question of law that this court reviews de novo. State v. Bailey,___Ohio St.3d___, 2022-Ohio-4407,___N.E.3d___, ¶ 6, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1. "Although determining whether R.C. 2941.25 has been properly applied is a legal question, it necessarily turns on an analysis of the facts, which can lead to exceedingly fine distinctions." Id. at ¶ 11, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52 ("this analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases"), abrogated in part by Ruff at ¶ 1. Appellant did not raise the issue of merger at sentencing. Because she failed to preserve the issue of merger at trial by failing to raise it at the time of sentencing, she forfeits all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Plain error is only reversible if "it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." Id.
{¶ 67} As to appellant's contention that felonious assault and murder were allied offenses of similar import, the evidence contained in the record shows that Banks suffered several stab wounds prior to his death, some of which were not fatal. For example, Scala-Barnett testified that Banks suffered a stab wound to his upper lip and a knife wound at the base of his neck which only impacted his soft tissue and muscle in that area. Furthermore, Banks suffered non-fatal bite wounds to his hands. Based upon the evidence of a mix of fatal and non-fatal stab wounds, the state argues that the felonious assault charge and felony murder charge do not merge. The state's argument is misplaced.
{¶ 68} During its closing argument at trial, the state acknowledged that felonious assault was the predicate offense of the felony murder charge in this case. Specifically, the state indicated:
So the next offense we'll talk about is felonious assault, and the State must prove that on or about October 19th, in Lucas County, Ohio, Anne Hair knowingly caused serious physical harm to Anthony Banks. * * * We know
that Anne Hair's act, that is, repeatedly stabbing and cutting Anthony Banks, directly produced serious physical harm to Anthony Banks. Without her actions the serious physical harm would not have occurred. * * * Therefore, the State has proven all of the elements of this offense, and has proven the offense itself. So now we're going to add to it like we just did the last time, and in order to prove the elements of murder the State must prove that on or about October 19, 2020, in Lucas County, Ohio, Anne Hair caused the death of Anthony Banks as a proximate result of committing felonious assault. * * * We can rely on the evidence we just discussed when establishing felonious assault * * *. So if you agree that the State has proven felonious assault, then the State has met its burden on this last element here. And because we've checked off every element, the State has proven all of the elements of murder.
{¶ 69} Following closing arguments, the trial court provided the jury with instructions. During its instructions, the trial court explained to the jury that the charge of murder was predicated upon the charge of felonious assault, and instructed the jury that it must find appellant guilty of felonious assault in order to consider the murder charge.
{¶ 70} At the outset, we note that the merger analysis set forth by the Ohio Supreme Court in Ruff does not automatically preclude separate convictions for felony murder and its predicate offense. Indeed, courts have recognized that "there is now no overarching rule to the effect that where one offense is predicated on the commission of another, with the second essentially being an element of the first, the two must automatically merge at sentencing." State v. McKnight, 2022-Ohio-591, 185 N.E.3d 1148, ¶ 33 (10th Dist). Thus, in some cases merger of the felony murder count with its predicate offense is not warranted. See State v. McKnight, 2022-Ohio-591, 185 N.E.3d 1148, ¶ 37-38 (10th Dist.) (holding that aggravated burglary and felony murder predicated upon the aggravated burglary are not allied offenses of similar import where the aggravated burglary was completed at the moment the defendant brought a firearm into the apartment where more than one individual was present, prior to the infliction of physical harm on the murder victim); State v. Robinson, 1st Dist. Hamilton No. C-170147, 2019-Ohio-387, ¶ 61 ("The harm from bringing a weapon into a home is separate and identifiable from the harm resulting when you use that weapon," and thus that aggravated burglary offense "involved an import separate from the other offenses.") However, this is not such a case.
{¶ 71} As is evident from the state's closing argument and the fact that appellant was charged with only one count of felonious assault, there is no merit to the state's contention that the felonious assault conviction was based only upon the non-fatal stab wounds inflicted by appellant. The state's distinction between fatal and non-fatal injuries is notably absent from the arguments of the parties at trial. Rather than distinguish between individual stab wounds, the state elected to charge appellant with a sole count of felonious assault based upon the stabbing as a whole. Similarly, the state's argument in closing clearly establishes that the felony murder charge was predicated upon the entire stabbing incident, not just those blows that were fatal. Consequently, we find that the offenses of felonious assault and felony murder, as they were tried in this case, were not dissimilar in import or significance, were not committed separately, and were not committed with a separate animus or motivation. Accordingly, these offenses were allied offenses of similar import as a matter of law, and the trial court committed plain error in failing to merge them at sentencing.
{¶ 72} Concerning the offenses of aggravated arson and tampering with evidence, appellant admits that "courts have held that arson and tampering do not merge because there is a harm to the owner of the thing burned and a harm to the State in loss of evidence." See State v. Miller, 5th Dist. Fairfield No. 15-CA-40, 2016-Ohio-2673, ¶ 39 (rejecting argument that arson and tampering with evidence are allied offenses of similar import, because starting the fire separately harmed the property owner (the arson victim) and the state (the tampering victim). Nonetheless, appellant argues that this holding is inapplicable here, because "there is no harm to the State. The State had already collected the evidence it needed. For this reason, the charges should merge." This argument lacks any support in the record and is thus unavailing.
{¶ 73} Appellant's argument is rooted in speculation that no further evidence remained in the residence when appellant started the fire. Of course, whether any such evidence actually existed in the residence is impossible to ascertain, because appellant destroyed any such evidence when she started the fire that led to a total loss of the structure. At trial, Lewis testified that appellant committed the arson with the purpose of destroying and DNA evidence that remained there.
{¶ 74} Moreover, appellant's argument presupposes that the state must demonstrate that it suffered actual injury in order to prevent the merger of the aggravated arson charge and the tampering with evidence charge. Appellant cites no legal authority for this presupposition, and we have likewise found none.
{¶ 75} In sum, the record demonstrates that the felonious assault and felony murder charges should have merged as allied offenses of similar import. The charges of aggravated arson and tampering with evidence are not subject to merger as those offenses are not allied offenses of similar import. Accordingly, appellant's first assignment of error is well-taken, in part.
III. Conclusion
{¶ 76} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reverse, in part. This matter is remanded to the trial court for a new sentencing hearing at which the trial court is instructed to merge the felonious assault and murder counts and permit the state to elect which allied offense it will pursue against appellant. The parties are ordered to split the costs of this appeal evenly pursuant to App.R. 24.
Judgment affirmed, in part, and reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
THOMAS J. OSOWIK, J., CHRISTINE E. MAYLE, J., GENE A. ZMUDA, J. CONCUR.