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Date: 12-05-2020
Case Style:
STATE OF OHIO v. JOSHUA A. MEEKS
Case Number: 4-20-02
Judge: Stephen R. Shaw
Court: IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
Plaintiff's Attorney: Russell R. Herman
Defendant's Attorney:
OR
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Description:
Defiance, OH - Criminal defense lawyer represented defendant Joshua A. Meeks charged with Kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree, and Felonious Assault in violation of
R.C. 2903.11(A)(1), a felony of the second degree.
{¶2} On August 29, 2019, Meeks was indicted for (Count 1) Attempted
Aggravated Murder in violation of R.C. 2923.02 and R.C. 2903.01(B), a felony of
the first degree, (Count 2) Kidnapping in violation of R.C. 2905.01(A)(3), a felony
of the first degree, (Count 3) Rape in violation of R.C. 2907.02(A)(2), a felony of
the first degree, (Count 4) Felonious Assault in violation of R.C. 2903.11(A)(2), a
felony of the second degree, (Count 5) Felonious Assault in violation of R.C.
2903.11(A)(1), a felony of the second degree, and (Count 6) Domestic Violence in
violation of R.C. 2919.25(A), a felony of the third degree due to Meeks having two
prior convictions for Domestic Violence. Counts 1 through 5 of the indictment all
contained Repeat Violent Offender specifications pursuant to R.C. 2941.149(A)
Case No. 4-20-02
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indicating that Meeks had previously been convicted of Felonious Assault in
Defiance County in 2007. The alleged victim of all the crimes in this indictment
was Meeks’ wife. At the time of the incidents Meeks and his wife still lived together
but they were proceeding through a divorce. Meeks pled not guilty to the charges.
{¶3} On November 7, 2019, a change-of-plea hearing was held wherein
Meeks agreed to plead guilty to Count 2, Kidnapping in Violation of R.C.
2905.01(A)(3), a felony of the first degree, Count 5, Felonious Assault in violation
of R.C. 2903.11(A)(1), a felony of the second degree, and (Count 6) Domestic
Violence in violation of R.C. 2919.25(A), a felony of the third degree. In exchange
for Meeks’ pleas, the State agreed to dismiss the remaining charges against him and
to dismiss the Repeat Violent Offender specifications. Further, the State agreed that
the Felonious Assault and Domestic Violence convictions would merge for
purposes of sentencing.
{¶4} The trial court conducted a Crim.R. 11 colloquy with Meeks and
determined that his pleas were knowing, intelligent, and voluntary. The trial court
also had the State recite a factual basis for the charges, which Meeks and his counsel
acknowledged were essentially correct, though Meeks stated the crimes did not
occur in precisely the way the State alleged. Afterward, Meeks’ pleas were accepted
and he was found guilty.
Case No. 4-20-02
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{¶5} On January 16, 2020, the matter proceeded to sentencing. The State
recommended a lengthy prison term due to Meeks’ violent criminal history. It was
noted that Meeks had been charged with another Aggravated Assault while he was
being held in custody as this case was pending.
{¶6} Meeks’ attorney then argued that the Felonious Assault and Kidnapping
counts should merge. The State objected, contending that if the State was aware
Meeks would be seeking merger of those two charges it would not have dismissed
certain other charges or specifications. Nevertheless, the trial court found that the
Felonious Assault and Kidnapping charges did not merge, reasoning that there were
multiple instances of serious violence against the victim in this matter.
{¶7} After Meeks apologized to the victim in this matter, Meeks was ordered
to serve an indefinite prison term of 10-15 years on the Kidnapping conviction, and
7 to 10 and ½ years on the Felonious Assault conviction. The Felonious Assault
and Domestic Violence charges were merged for the purposes of sentencing. The
trial court ordered that Meeks’ sentences be served consecutively for an aggregate,
indefinite prison term of 17 to 22 years. A judgment entry memorializing this
sentence was filed January 24, 2020. It is from this judgment that Meeks appeals,
asserting the following assignment of error for our review.
Assignment of Error
The trial court erred when it failed to merge appellant’s sentence
for Kidnapping and Felonious Assault.
Case No. 4-20-02
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{¶8} In his assignment of error, Meeks contends that the trial court erred by
failing to merge his sentences for Kidnapping and Felonious Assault.
Standard of Review
{¶9} “ ‘Whether offenses are allied offenses of similar import is a question
of law that this Court reviews de novo.’ ” State v. Jessen, 3d Dist. Auglaize No. 2-
18-16, 2019-Ohio-907, ¶ 22, quoting State v. Frye, 3d Dist. Allen No. 1-17-30,
2018-Ohio-894; see generally State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-955.
Relevant Authority
{¶10} Revised Code 2941.25, Ohio’s multiple-count statute, states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶11} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme
Court of Ohio held the following with regard to determining allied offenses:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate
three separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct
Case No. 4-20-02
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constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of
the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
The Supreme Court in Ruff explained:
At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant’s conduct.
The evidence at trial or during a plea or sentencing hearing will
reveal whether the offenses have similar import. When a
defendant’s conduct victimizes more than one person, the harm
for each person is separate and distinct, and therefore, the
defendant can be convicted of multiple counts. Also, a defendant’s
conduct that constitutes two or more offenses against a single
victim can support multiple convictions if the harm that results
from each offense is separate and identifiable from the harm of
the other offense. We therefore hold that two or more offenses of
dissimilar import exist within the meaning of R.C. 2941.25(B)
when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is
separate and identifiable.
Ruff, 2015-Ohio-995 at ¶ 26.
Analysis
{¶12} In this case Meeks was convicted of Kidnapping in violation of R.C.
2905.01(A)(3), which reads,
(A) No person, by force, threat, or deception, * * * by any means,
shall remove another from the place where the other person is
found or restrain the liberty of the other person, for any of the
following purposes:
Case No. 4-20-02
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* * *
(3) To terrorize, or to inflict serious physical harm on the
victim or another[.]
{¶13} Meeks was also convicted of Felonious Assault in violation of R.C.
2903.11(A)(1), which reads, “No person shall knowingly * * * [c]ause serious
physical harm to another[.]”
{¶14} Meeks argues that his sentences for Kidnapping and Felonious Assault
should have merged in this case, particularly since they “shared” the element of
serious physical harm.1
In addition, Meeks argues that Kidnapping and Felonious
Assault could be committed by the same conduct if the restraint was only to engage
in the assault, and that there was only one victim of the offenses. Thus Meeks
contends that the only remaining question under Ruff is whether the offenses were
committed with a separate animus.
{¶15} With regard to his “animus” in this matter, Meeks alleges that he never
intended to separately commit a Kidnapping; rather, he argues that “in his mind [the
Kidnapping] was not a distinct and separate event [from the Felonious Assault], and
he had no separate animus.” (Appt.’s Br. at 8). Meeks claims the lack of a separate
animus for the Kidnapping was illustrated at the sentencing hearing when he only
apologized for the Felonious Assault.
1
As will be discussed, infra, Felonious Assault clearly requires serious physical harm, but Kidnapping only
requires restraint with purpose to terrorize or inflict serious physical harm.
Case No. 4-20-02
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{¶16} The State counters by citing to numerous cases wherein Kidnapping
and Felonious Assault convictions were not merged. See, e.g., State v. Harmon, 9th
Dist. Summit No. 26502, 2013-Ohio-1769. While we acknowledge the State’s point
that cases exist finding that Kidnapping and Felonious Assault would not merge,
under the current law, merger inherently involves an examination of the particular
facts and circumstances of each case. Ruff, 2015-Ohio-995 at ¶ 26. As to the facts
in this case, the State contends that the circumstances establish a separate animus
for each of the offenses. We agree.
{¶17} In State v. Logan, 60 Ohio St.2d 126 (1979), the Supreme Court of
Ohio set forth guidelines for when Kidnapping should merge with another offense.
(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.
“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
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the Ruff test.” State v. Sowers, 2d Dist. Clark No. 2018-CA-58, 2019-Ohio-649, ¶
18, citing State 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, 7th Dist. Mahoning No. 13MA125, 2015-Ohio-4100, ¶
18; State v. Stinnett, 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, ¶ 53.
{¶18} Notably, this case was resolved by way of a plea agreement, providing
fewer facts for the trial court to make a determination regarding merger.
Nevertheless, the record in this case contained, inter alia, the indictment, the sworn
affidavit of a police officer initially filed with a complaint, the factual statements at
the plea hearing, and the statements contained in the pre-sentence investigation, all
of which provided a sufficient account of the incidents in question for purposes of
reviewing the issue of merger in this case.
{¶19} First, the indictment alleged multiple instances of Felonious Assault
and a sexual assault via a Rape. Second, and more specifically to the facts in
question, an officer who initially met with the victim filed an affidavit that stated as
follows.
On 08/16/2019 at approx. 1249 hours, Ptl Herbert and I were
dispatched to 1005 Sunday St. Defiance, OH for a Domestic
Violence complaint that took place at 622 Riverside Ave.
Defiance, OH on 08/16/2019 at approx. 0130 hours. We made
contact with [the victim] who stated [that she and] her husband,
Joshua Meeks, are going through a divorce, but still live together.
She stated that he accused her of seeing another guy. She stated
that they were in the bedroom and he grabbed her by the throat
Case No. 4-20-02
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(larynx area) and was strangling her. She stated he then leg swept
her, knocking her on the bed and slapping her in the face. She
stated he then grabbed a wooden walking stick, and began hitting
her in the head, shoulders, and legs. He then grabbed a serrated
knife and held it against her throat and threatened to kill her and
himself. She stated that she told him that she wanted to be with
him and they would work things out s[o] he would calm down and
he took the knife away from her throat. Ms. Meeks had scrapes
on her elbows. A large bruise on her left bicep. A large bruise on
her right shoulder and a mid sized bruise on her left shoulder. On
the front of her thighs, were bruises that almost covered the entire
area from her pelvic region to her knee. Ms. Meeks was taken to
Defiance Mercy Hospital for treatment for her injuries.
* * *
Joshua Meeks was located at 622 Riverside Ave. * * * He stated
that his wife likes to be choked during sex and he denied hitting
her. * * *
(Doc. No. 1).
{¶20} Third, in addition to the officer’s affidavit in the record, the State
recited a factual narrative at the change of plea hearing, which indicated that Meeks
assaulted the victim “repeatedly.” (Nov. 7, 2019, Tr. at 16). These incidents
included one where he choked the victim nearly to the point of unconsciousness,
another incident where Meeks struck the victim all over with a “wooden dowel,”
and one incident where a knife was put to her throat. The victim was only able to
leave the room the next morning.
{¶21} Finally, the presentence investigation, which was discussed at
sentencing, indicated that the victim was forced into a sexual encounter that she was
Case No. 4-20-02
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afraid to prevent because of the incident earlier in the evening wherein Meeks had
choked her to the point of unconsciousness, and because of the incident wherein
Meeks threatened to kill her with a knife at her throat. The strangling incident led
to the victim having broken blood vessels (petechiae) in her eyes, and the knife left
a straight line scraping on her throat. The sexual assault purportedly occurred as the
victim was drifting off to sleep. Meeks pulled her legs apart and had sexual
intercourse with her. After reviewing all of the information the trial court had before
it, the trial court determined that the convictions for Felonious Assault and
Kidnapping did not merge.
{¶22} In our own review of the record, we emphasize that there appeared to
be multiple instances of potential serious physical harm and an accusation of sexual
assault. There were allegations of the victim being choked to unconsciousness (or
near unconsciousness), allegations of a knife being held to her throat with threats of
murder, allegations of the victim being beaten repeatedly with a wooden dowel, and
allegations of sexual assault.
{¶23} When the victim tried to get away from the situation in the house she
shared with Meeks at one point, she was restrained against her will and she was only
able to leave the following morning. It is not entirely clear from the record at what
point she was restrained or at what point each of the physical acts were perpetrated
against the victim; however, as there were multiple incidents here of serious
Case No. 4-20-02
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physical harm, or for potential serious physical harm, we could not find that the trial
court’s failure to merge these offenses was improper under these circumstances. See
Sowers, supra, 2019-Ohio-649, ¶ 19 (finding that separate identifiable acts in the
midst of a Kidnapping resulted in separate animus). There is no indication that the
restraint in this matter was only to perpetrate a single assault.
{¶24} Moreover, the Kidnapping statute only requires that a defendant
restrain a victim with the purpose to terrorize or inflict serious physical harm. In
other words, a defendant does not even have to complete his acts. See State v. Davis,
116 Ohio St.3d 404 2008-Ohio-2, quoting State v. Powell (1990), 49 Ohio St.3d
255, 262 (analyzing another Kidnapping provision and holding, “R.C.
2905.01(A)(4) requires only that the restraint or removal occur for the purpose of
non-consensual sexual activity—not that sexual activity actually take place.”)
(emphasis sic.) Thus the restraint for the Kidnapping here did not even have to lead
to completed acts. Nevertheless, as stated previously, there were multiple acts
reflected in the record of this case, which the trial court could have properly
determined were separate and distinct. For all of these reasons, Meeks’ assignment
of error is overruled.
Case No. 4-20-02
Outcome: For the foregoing reasons the assignment of error is overruled and the
judgment of the Defiance County Common Pleas Court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: