[Cite as State v. Sowers,
2019-Ohio-649.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-58
:
v. : Trial Court Case No. 2018-CR-80
:
WILLIAM SOWERS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of February, 2019.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant William Sowers appeals his conviction and sentence for
the following offenses: Count I, felonious assault, in violation of R.C. 2903.11(A)(1), a
felony of the second degree; Count II, domestic violence, in violation of R.C. 2919.25(A),
a felony of the third degree; Count III, kidnapping, in violation of R.C. 2905.01(A)(3), a
felony of the first degree; and Count IV, abduction, in violation of R.C. 2905.02(A)(2), a
felony of the third degree. Sowers filed a timely notice of appeal with this court on May
3, 2018.
{¶ 2} The incident which forms the basis for this appeal occurred during the
evening of January 24, 2018, and the early morning hours of January 25, 2018, at the
shared residence of Sowers and Linda McKinney in Springfield, Ohio. As they returned
home from the grocery store, Sowers and McKinney were arguing about ordering dinner
at an Arby’s fast-food restaurant. Immediately after entering their residence, Sowers
shoved McKinney and kicked her dog. McKinney pushed Sowers away from her and
went into their shared bedroom. Sowers followed McKinney into the bedroom and
pushed her to the ground. Sowers then began punching and kicking McKinney in the
head and upper body. Sowers also pushed furniture down on top of McKinney and hit
her with a chair. After jumping up and down on McKinney several times, Sowers dragged
her by her hair into the living room and rubbed hand sanitizer on her face while continuing
to punch her in the face.
{¶ 3} At some point after the assault, McKinney attempted to leave the residence
through the front door. Sowers, however, pulled McKinney back inside the residence,
telling her that she was “not going to run like the rest of them did.” Sowers then dragged
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McKinney and allowed her to get a drink of water, because she said that she was thirsty.
Thereafter, Sowers pulled McKinney into his son’s bedroom and made her sit on the bed.
After kicking her legs several times, Sowers produced a lighter and told McKinney that he
was going to set her on fire.
{¶ 4} Sowers then forced McKinney into the bathroom and made her take a
shower. Before entering the shower, McKinney looked in the mirror and observed that
she was bloody, bruised, and one of her eyes was swollen shut. After McKinney finished
showering, Sowers would not let her put on any clothes. Sowers then forced McKinney
to sit on the couch in the living room. McKinney repeatedly asked Sowers if she could
leave the residence, but he informed her that she could not leave until her injuries healed.
To keep McKinney from leaving, Sowers laid down on the couch with his legs over her to
keep her from moving.
{¶ 5} Once Sowers fell asleep, McKinney was able to retrieve his cellphone and
call 911, quietly providing her address to the dispatcher. Shortly thereafter, the police
arrived at the residence, and McKinney was able to get out from under Sowers.
McKinney initially tried to use the front door to exit the house, but it would not open.
Ultimately, McKinney was able to exit the house through the side door where police were
waiting for her. McKinney was able to identify Sowers as her attacker to the police, and
he was arrested and taken into custody.
{¶ 6} When she was rescued by the police, McKinney was still naked, but one of
the officers went into the residence to retrieve some clothes for her to wear. McKinney
was then transported to the Springfield Regional Medical Center, where she was treated
for her injuries. Her treatment included inserting a chest tube in order to re-inflate her
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left lung. McKinney was eventually flown to Miami Valley Hospital for further treatment.
McKinney’s injuries included broken ribs, a collapsed lung, and extensive bruising on her
arms, chest, legs and face.
{¶ 7} On February 5, 2018, Sowers was indicted for one count of kidnapping, one
count of abduction, one count of felonious assault, and one count of domestic violence.
A jury trial was held on April 11, 2018, and Sowers was found guilty of all counts in the
indictment. At the sentencing hearing held on April 20, 2018, the trial court merged
Sowers’s convictions for kidnapping and abduction, as well as his convictions for
felonious assault and domestic violence. The State elected to proceed to sentencing on
Sowers’s convictions for felonious assault and kidnapping. The trial court refused
Sowers’s request to merge his convictions for felonious assault and kidnapping.
Thereafter, the trial court sentenced Sowers to eight years in prison for felonious assault
and eight years for kidnapping. The trial court ordered the sentences to be served
consecutively for an aggregate sentence of 16 years of imprisonment.
{¶ 8} It is from this judgment that Sowers now appeals.
{¶ 9} Sowers’s sole assignment of error is as follows:
THE TRIAL COURT FAILED TO MERGE ALL OF THE ALLIED
OFFENSES FOR SENTENCING.
{¶ 10} In his sole assignment, Sowers contends that the trial court erred when it
refused to merge all of his convictions at sentencing. Specifically, Sowers argues that
his convictions for felonious assault and kidnapping were subject to merger as the
offenses were committed with the same animus, were not committed separately, and
were not dissimilar in import.
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{¶ 11} R.C. 2941.25, Ohio’s allied offense statute, provides 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
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.
{¶ 12} The Ohio Supreme Court clarified the applicable standard when
determining whether offenses merge as allied offenses of similar import in State v. Ruff,
143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant’s conduct to determine whether one or more convictions
may result, because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
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 the defendant’s conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance? (2)
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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 ¶ 30-31.
{¶ 13} In State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-143, we
stated the following:
[T]he Ohio Supreme Court addressed the allied-offense issue again
in State v. Earley, [145 Ohio St.3d 281,
2015-Ohio-4615,
49 N.E.3d 266].
There the majority characterized the analysis in its earlier [State v.]
Johnson[, 128 Ohio St.3d 153,
2010-Ohio-6314,
942 N.E.2d 1061] lead
opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead
embraced Ruff, which, as noted above, considers a defendant’s conduct,
his animus, and the import or significance of his offenses. Applying Ruff,
the Earley court concluded that misdemeanor OVI and felony aggravated
vehicular assault “are offenses of dissimilar import and significance that are
to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis
here, we note that a defendant bears the burden of establishing entitlement
to merger, and we review a trial court’s ruling on the issue de novo. State v.
LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.
…
We reach the same conclusion under the Ruff standard, which the
Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters
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or undermines the foregoing analysis about [the defendant’s] commission
of murder and aggravated robbery involving the same conduct committed
with the same animus. For the reasons set forth above, we conclude that
the two offenses were not committed separately and were not committed
with a separate animus or motivation. These findings remain pertinent
under Ruff, which, as noted above, provides that offenses do not merge if
“(1) the offenses are dissimilar in import or significance—in other words,
each offense caused separate, identifiable harm, (2) the offenses were
committed separately, or (3) the offenses were committed with separate
animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.
Id. at ¶ 54, quoting State v. McGail, 2015-Ohio-5384,
55 N.E.3d 513, ¶ 51, 60 (2d Dist.).
{¶ 14} An appellate court applies a de novo standard of review in reviewing a trial
court’s R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-
Ohio-5699,
983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of establishing his
entitlement to the protection provided by R.C. 2941.25 against multiple punishments for
a single criminal act.” State v. Washington,
137 Ohio St.3d 427,
2013-Ohio-4982,
999
N.E.2d 661, ¶ 18.
{¶ 15} Recently, we discussed whether a defendant’s convictions for robbery and
abduction merged for purposes of sentencing. In State v. Moore, 2d Dist. Clark No.
2016-CA-45, 2018-Ohio-2111, we stated:
… According to the record, two employees were in the Speedway
gas station at the time of the robbery on February 8, 2016; one employee
was behind the counter. Moore entered the business and brandished a BB
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gun. Moore jumped over the counter by the cash register and the
employee behind the counter attempted to flee through the back of the
store. Moore pursued the employee and escorted him back to the register
using the BB gun. Moore had the employees open the registers while
pointing the BB gun at them, and then had them lie on the ground. Moore
grabbed the cash from the register, exited the store, and got into a vehicle
that was waiting to drive him away from the scene.
…
Here, the record reflects that Moore did not simply display a weapon
during the commission of the robbery, thereby restraining the employees
simultaneously with the robbery. Rather, when an employee attempted to
flee the building through the back of the store, Moore pursued the employee
and brought him back to the registers at gunpoint. Moore’s actions in
pursuing, stopping, and returning with the employee were separate acts and
reflected an intention to prevent the employee’s escape, not simply to rob
the store. Accordingly, we find no error, plain or otherwise, in the trial
court’s failure to merge the robbery and abduction as allied offenses of
similar import.
(Emphasis added.) Id. at ¶ 15, 17.
{¶ 16} Applying the rationale in Moore to the facts in the instant case, we cannot
find that the trial court erred when it failed to merge Sowers’s convictions for felonious
assault and kidnapping. Here, the record reflects that Sowers assaulted McKinney over
a long period of time during the night of January 24, 2018, and the early morning of
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January 25, 2018. However, when Sowers stopped assaulting McKinney, he attempted
to prevent her from leaving the residence in an effort to conceal his earlier conduct. After
he was finished assaulting McKinney, he forced her to take a shower, after which he did
not punch or kick her any further.
{¶ 17} In State v. Logan, 60 Ohio St.2d 126, 130,
397 N.E.2d 1345 (1979),
paragraph one of the syllabus, the court provided the following guidelines for determining
whether kidnapping and another offense are allied offenses that should merge prior to
sentencing:
(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.
Id.
{¶ 18} Although Logan predates Ruff, Ohio courts continue to apply the guidelines
set forth in Logan in determining whether kidnapping and another offense were committed
with a separate animus, in accordance with the third prong of the Ruff test. See e.g. State
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v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452, ¶ 125, citing State v.
D.E.M., 10th Dist. Franklin No. 15AP-589,
2016-Ohio-5638, ¶ 143; State v. Williams,
43
N.E.3d 797,
2015-Ohio-4100, ¶ 18 (7th Dist.); State v. Stinnett, 5th Dist. Fairfield No. 15-
CA-24,
2016-Ohio-2711, ¶ 53.
{¶ 19} Sowers’s actions in assaulting McKinney, stopping the assault to compel
her to shower, and then laying on top of her on the sofa to prevent her from leaving the
residence were separate and identifiable acts committed with a separate animus. Simply
put, once Sowers concluded his assault of McKinney, his focus changed to concealing
the assault by not allowing her to leave the residence. This is apparent, in part, from
Sowers’s statement to McKinney that she could not leave until she was healed. In order
to keep her from leaving, thereby concealing the assault, Sowers literally fell asleep on
the couch with his legs on top of McKinney, ostensibly so that she could not leave without
his knowledge. Sowers’s conduct in preventing McKinney from leaving the residence
(kidnapping) involved a separate harm from the harm that was involved in the commission
of the felonious assault and was committed with a separate animus. Thus, the trial court
did not err when it refused to merge Sowers’s convictions for felonious assault and
kidnapping.
{¶ 20} Sowers’s sole assignment of error is overruled.
{¶ 21} Sowers’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
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Copies sent to:
Megan M. Farley
John S. Pinard
Hon. Douglas M. Rastatter
