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Date: 06-10-2021
Case Style:
State of Ohio v. Kevin Martin
Case Number: L-19-1133
Judge: Gene A. Zmuda
Court: IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Plaintiff's Attorney: Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Toledo, Ohio - Criminal defense attorney represented Kevin Martin with three counts: Count 1, complicity to commit felonious assault; Count 2, complicity to commit aggravated robbery and Count 3 participation in a criminal gang charges.
On August 22, 2018, after an argument over access to fuel pumps at the gas
station at Cherry and East Bancroft Streets in Toledo, Ohio, appellant and his
codefendants, Shawna Merriweather, Deangelo Gott, and Shantay Saxton participated in
the assault and robbery of a man. The gas station’s surveillance video recorded the
incident, occurring between 9:00 and 9:30 p.m.
{¶ 3} The video depicted the following sequence of events.
{¶ 4} Between 9:00 and 9:20 p.m., appellant and Merriweather parked their
vehicles on either side of the gas pump, but neither appeared to pump gas. Gott was a
passenger in appellant’s vehicle. Saxton arrived shortly after, and began fueling her car
at another pump, on the other side of appellant’s car. As her car was fueling, Saxton
walked over to converse with Merriweather, seated in her vehicle. The group was
gathered around the gas pump at the center of the dispute when the victim, L.I., arrived to
get gas.
{¶ 5} L.I. and his girlfriend arrived in their vehicle around 9:20 p.m., and stopped
at the rear of Merriweather’s car. All other pumps were in use at the time, and
Merriweather was just parked, not pumping gas. L.I.’s girlfriend exited the vehicle and
went into the store to prepay before pumping gas. However, because Merriweather did
not move, L.I. could not access the pump.
{¶ 6} After waiting a few minutes, L.I. walked up to the driver’s side window,
briefly spoke with Merriweather, and returned to his car. L.I. left his car once more to
access his trunk, but was back in his car when the group moved toward him. At about 3.
9:26 p.m., L.I. and the group appeared to engage in an argument. L.I. attempted to inch
his car closer to the pump and Merriweather’s vehicle remained in place, blocking access.
{¶ 7} Around 9:28 p.m., L.I. exited his vehicle once more, gesturing, yelling, and
appearing agitated. L.I. then walked toward the front door of the store, continuing to
speak with the group following behind him. When L.I. turned toward appellant, Gott
struck L.I. in the head, from behind, and L.I. dropped to the ground. Saxton and
Merriweather then began kicking L.I. Appellant then grabbed L.I.’s pant legs or ankles
and shook him upside down, with L.I.’s head toward the ground. Appellant, with
Saxton’s help, then dragged L.I. across the pavement and removed L.I.’s pants, leaving
him naked from the waist down. Saxton took the pants and went through the pockets as
Gott picked up loose items around L.I.’s motionless body. Appellant stood over L.I. and
recorded him with his phone. Appellant then returned to his car, and Gott picked
something up near L.I. and handed it to appellant. The group, each in their own vehicle,
then drove away.
{¶ 8} Police received 911 calls from the scene, and when they arrived in response
to the calls, they found L.I. unconscious and half-naked. By the time a medical crew
arrived, L.I. had regained consciousness, and indicated he was unhurt. There was no
further assessment at the scene, as L.I.’s family arrived, put L.I. in their car, and drove
off. Sometime later, L.I.’s family took him to the hospital where he was admitted and
treated for injuries including a brain bleed and potential seizures. 4.
{¶ 9} Appellant was indicted on three counts: Count 1, complicity to commit
felonious assault in violation of R.C. 2903.11(A)(1) and (D), a felony of the second
degree with an attached specification of participation in a criminal gang in violation of
R.C. 2941.142; Count 2, complicity to commit aggravated robbery in violation of R.C.
2911.01(A)(3) and (C), a felony of the first degree, with an attached specification of
participation in a criminal gang in violation of R.C. 2941.142; and Count 3, participation
in a criminal gang in violation of R.C. 2923.42(A) and (B), a felony of the second degree.
{¶ 10} The matter proceeded to a jury trial on May 6 through 10, 2019. Prior to
seating a jury, the trial court addressed motions in limine filed by appellant, seeking to
preclude mention of gang activity that served as a basis for a prior conviction for gang
activity, as well as social media materials. The trial court denied the motions in limine
after the prosecution indicated it would only use gang activity after the date of the prior
conviction1
, and indicated the use of social media materials would be limited to the
Facebook account belonging to appellant and photographs posted of appellant and Gott
and identified as such in testimony.
{¶ 11} At trial, the prosecution presented evidence including the surveillance
video,2
the 911 calls, L.I.’s medical records, and testimony of the first responders and a
1
The state moved to amend the indictment to indicate conduct between December 29,
2013 and September 28, 2018, and the trial court granted the motion. The trial court also
denied appellant’s pro se motion to suppress, advising appellant that he had an attorney
and hybrid representation was not permitted.
2
The surveillance video was admitted by stipulation of the parties prior to trial. 5.
treating nurse at the hospital. Detective William Noon also testified as an expert in gang
activity, and linked appellant to continuing membership in the Moody Manor Bloods, a
Toledo gang, through evidence including appellant’s prior, admitted association with a
gang and his more current association and Facebook posts. Detective Noon also testified
that gangs often used social media to post video of their crimes.
{¶ 12} Detective Richard Holland, the lead investigator, also testified. He
indicated he interviewed the first responders and followed-up with L.I. and his girlfriend
at the hospital, and learned that L.I.’s cell phone was missing after the assault, along with
other property. L.I.’s girlfriend provided a description of the assailants to police, and
after reviewing surveillance video, Detective Holland obtained photographs from the
video of each of the individuals involved in the incident. Detective Holland identified
appellant from his photograph, and as the jury viewed video of the incident, Holland
pointed out each individual, including appellant, in the video. Based on the video and
report of missing property, Detective Holland issued a robbery warrant for all four
individuals involved in the attack on L.I.
{¶ 13} Appellant testified in his own defense. He acknowledged his past gang
membership and his continued association with gang members, but denied he was still
part of a gang, stating he left the gang. He also testified he grabbed L.I.’s pants because
he was “checking the waistband,” but denied assaulting or robbing him.3
He also
3
This testimony contradicted earlier representations in court, as appellant had previously
represented to the court that he was “jumped out” of the gang and he removed L.I.’s pants 6.
testified that he recorded the argument over the gas pump between Merriweather and L.I.,
and recorded L.I. laying half-naked and unconscious. Appellant admitted uploading the
recordings to Snapchat.4
{¶ 14} The trial court instructed the jury regarding the charges, and included an
instruction on complicity. After deliberating, the jury returned a verdict of guilty as to all
counts and made the additional finding that appellant was participating in a criminal gang
as to each specification.
{¶ 15} The trial court held a sentencing hearing on May 29, 2019, and ordered
appellant to serve a prison term of two years as to Count 1, complicity to commit
felonious assault, with an additional mandatory and consecutive two-year term imposed
based on the jury’s finding for the specification that appellant participated in a criminal
gang. The trial court ordered appellant to serve a prison term of three years as to
Count 2, complicity to commit aggravated robbery, with an additional mandatory and
consecutive two-year term imposed based on the jury’s finding for the specification that
appellant participated in a criminal gang. The trial court ordered appellant to serve a
because he thought it would be funny. The prosecution noted this contradiction at
appellant’s sentencing hearing, questioning whether appellant lied under oath or lied to
the trial court through his prior representations.
4
These recordings were not admitted as exhibits and are not part of the record. Snapchat
images are designed to disappear within a specified time period, and once that time
period expires, the images are removed from the user’s phone and the Snapchat server.
State v. Heard, 7th Dist. Mahoning No. 17 MA 0064, 2019-Ohio-1227, ¶ 67, citing Snap
and Destroy: Preservation Issues for Ephemeral Communications, 62 Bluff.L.Rev.
1239, 1248-1250 (2014). 7.
prison term of two years for Count 3, participating in a criminal gang. The trial court
ordered the sentences for Counts 1, 2, and 3 to be served concurrently, with the
mandatory two-year terms for the criminal gang specifications attached to Counts 1 and 2
to be served consecutively, for an aggregate prison term of seven years.
{¶ 16} At sentencing, appellant’s trial counsel did not request merger of the
felonious assault count with the aggravated robbery count and there was no discussion of
limiting the sentence to only one specification.
{¶ 17} Appellant filed a timely appeal from the judgment.
II. Assignments of Error
{¶ 18} Appellant asserts the following issues as error on appeal:
I. IT CONSTITUTED ERROR NOT TO MERGE THE
AGGRAVATED ROBBERY COUNT WITH THE FELONIOUS
ASSAULT COUNT.
II. IT IS CONTRARY TO LAW TO SENTENCE DEFENDANT
SEPARATELY FOR BOTH THE SPECIFICATION TO COUNT ONE
AND THE SPECIFICATION TO COUNT TWO.
III. THE VERDICT ON COUNT TWO (AGGRAVATED
ROBBERY) IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
8.
III. Analysis
{¶ 19} Appellant challenges the trial court’s sentence, arguing the aggravated
robbery and felonious assault convictions should have merged and the two specifications
should not have resulted in two, separate sentences. He also challenges the weight of the
evidence in support of his aggravated robbery conviction. We address his third
assignment of error first.
A. Manifest Weight
{¶ 20} In his third assignment of error, appellant argues his conviction for
aggravated robbery was against the manifest weight of the evidence. Appellant was
charged based on complicity in committing aggravated robbery in violation of R.C.
2911.01(A)(3) and (C), which provides:
(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing immediately
after the attempt or offense, shall do any of the following:
* * *
(3) Inflict, or attempt to inflict, serious physical harm on another.
(C) Whoever violates this section is guilty of aggravated robbery, a
felony of the first degree.
{¶ 21} Appellant argued the evidence could not sustain a verdict because there
was no evidence demonstrating he acted with a purpose to commit a theft offense.
Specifically, appellant argues there was no distinction between the conduct required for 9.
complicity to commit a felonious assault and the conduct required for complicity to
commit aggravated robbery, with an intent to commit theft.
{¶ 22} Applying the “manifest weight” standard, we sit as a “thirteenth juror,” and
may disagree with the jury’s resolution of conflicting testimony. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1977). We review the entire record, weigh the
evidence and any reasonable inferences, consider the credibility of the witnesses, and
determine whether the jury lost its way in resolving conflicts in the evidence, creating
such a manifest miscarriage of justice that reversal and a new trial is necessary.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717
(1st Dist.1983). Reversal based on the manifest weight of the evidence is reserved for
only the exceptional case “in which the evidence weighs heavily against conviction.”
Thompkins at 387, quoting Martin at 175.
{¶ 23} Appellant was tried based on a complicity theory, and not as the principal
actor. Ohio’s complicity statute, R.C. 2923.03, provides in pertinent part, “No person,
acting with the kind of culpability required for the commission of an offense, shall * * *
[a]id or abet another in committing the offense[.]” To support a conviction based on
complicity, there must be evidence showing appellant “supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the commission of the crime, and that
[appellant] shared the criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d
240, 754 N.E.2d 796 (2001), syllabus. A jury may infer such intent “from the
circumstances surrounding the crime.” Id. 10.
{¶ 24} In this case, appellant argues he “never took anything from [L.I.]” and the
assault was “a spontaneous occurrence,” and not something that he planned with Saxton
or Merriweather or Gott. He also argues that there was no evidence of separate conduct
relative to the assault and the robbery. In support, appellant refers to his testimony that
he barely knew Merriweather and Saxton. Appellant also argues that he, himself, did not
take any of L.I.’s property with him when he drove away with Gott. However, appellant
does not address other evidence or circumstances surrounding the crime.
{¶ 25} Regardless of any plan to assault and rob L.I., the video evidence
demonstrated appellant’s participation with the group before, during, and after the attack.
Appellant was part of the group shown surrounding L.I. at his car and as he walked
toward the store, and after Gott punched L.I. in the head and the women beat and kicked
L.I. as he lay on the ground, appellant grabbed L.I. by the ankles or pant legs and held
him upside down, jerking L.I.’s legs up and down as L.I.’s head hit the pavement.
Appellant also participated in pulling L.I.’s pants off, and handed the pants to Saxton,
who then went through the pockets and handed an object to appellant, which he put in his
pocket. Furthermore, by his own admission, appellant filmed the argument before the
attack and L.I.’s half-naked, unconscious body after the attack so that he could post the
events to Snapchat. Appellant also drove off with Gott, leaving the scene of the attack as
Saxton and Merriweather also drove away.
{¶ 26} Appellant’s argument places him at the scene, but minimizes his role in the
attack of L.I. and theft of his property. It is well-settled law that “mere presence” at the 11.
scene is not evidence of aiding or abetting. Johnson at 244. However, evidence
demonstrating “presence, companionship and conduct before and after the offense is
committed” may provide support for the inference of criminal intent to assist in the
crime. Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884
(4th Dist.1971). Here, there was an abundance of evidence of companionship and
cooperative conduct. Furthermore, the video of the incident contradicts appellant’s
argument that he played no part in taking L.I.’s property, as the video showed appellant
stripping L.I.’s pants off and handing them to Saxton, who then took items from the
pockets.
{¶ 27} Accordingly, based on the evidence presented to the jury, we find this is
not one of those exceptional cases where the jury lost its way in finding appellant guilty
of aggravated robbery. Appellant’s third assignment of error, therefore, is not well-taken.
B. Merger
{¶ 28} Having found the aggravated robbery conviction was supported by the
weight of the evidence, we next consider appellant’s first assignment of error regarding
merger of the felonious assault and aggravated robbery convictions. Appellant’s
argument as to merger relies on his assertion that the attack was spontaneous and his own
conduct was limited to a single harm unrelated to any theft, similar to the position we
rejected relative to his weight of the evidence challenge for his aggravated robbery
conviction. Appellant contends that “it is identical conduct on the part of [appellant] that 12.
simultaneously constitutes the factual basis [for appellant’s] complicity in both
[offenses].”
{¶ 29} Appellant did not seek merger in the trial court, and therefore, forfeited all
but plain error review. State v. Johnson, 6th Dist. Lucas No. L-16-1282, 2018-Ohio1657, ¶ 39, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,
¶ 3. Therefore, we will not reverse unless appellant demonstrates error, affecting his
substantial rights and creating a manifest miscarriage of justice. Rogers at ¶ 3; State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), citing Crim.R. 52(B).
{¶ 30} The Double Jeopardy Clause of the United States Constitution protects
against multiple punishments for the same offense. (Citations omitted.) State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. Ohio law codifies this
constitutional protection under R.C. 2941.25, which 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. 13.
{¶ 31} “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.” Ruff at ¶ 26. Thus, the
same set of offenses might yield different results in different cases, “‘given that the
statute instructs courts to examine a defendant’s conduct – an inherently subjective
determination.’” Id. at ¶ 32, quoting State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio6314, 942 N.E.2d 1061, ¶ 52 (plurality opinion).
{¶ 32} In applying the Ruff analysis, rather than focusing on the various elements
of each offense, courts consider three, separate factors: “the conduct, the animus, and the
import.” Ruff at paragraph one of the syllabus. This consideration requires a court to ask
three questions where a 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.” Ruff at ¶ 31.
{¶ 33} Appellant was convicted of both aggravated robbery and felonious assault,
based on complicity as to each offense. As previously noted, proof of aggravated robbery
requires evidence that appellant committed or attempted to commit a theft offense and
inflicted or attempted to inflict serious physical harm on another. R.C. 2911.01(A)(3).
Proof of felonious assault required evidence that appellant knowingly caused serious
physical harm to another. R.C. 2903.11(A)(1).
{¶ 34} Appellant raises no challenge to the serious physical harm element required
for conviction on each offense, and he acknowledges the various, continuing attacks on 14.
L.I., including the punch from Gott that sent L.I. to the ground, the beating inflicted by
Merriweather and Saxton as L.I. lay on the ground, and appellant’s own conduct in
shaking L.I. upside down and striking L.I.’s head on the pavement. In arguing that
merger was required, appellant argues that L.I. sustained a single harm resulting from a
single, ongoing attack, and that there was no separate animus in the commission of each
offense. Appellant also argues he, personally, caused no harm, “except to the extent
[L.I.] may have been hurt when he fell or was dropped to the ground.” Thus, while
acknowledging he may have caused harm, appellant argues that the same conduct
provided the basis for complicity as to both offenses, and therefore merger was required.
{¶ 35} Appellant’s argument relies on his characterization of the facts, limiting his
participation to dropping L.I. on his head and taking L.I.’s pants. Appellant also argues
that he did not participate in any theft or any additional assault. However, as we
previously noted in considering his manifest weight challenge, the evidence contradicts
appellant’s argument and instead supports a finding that he acted with complicity in the
attacks and the theft of property.
{¶ 36} Multiple offenses against a single person “can support multiple convictions
if the harm that results from each offense is separate and identifiable from the harm of the
other offense.” Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26. Here,
appellant participated with or was complicit in the attacks on L.I. that included Gott
punching L.I. and knocking him to the ground, Merriweather and Saxton pummeling L.I.
with kicks, and appellant—himself—lifting L.I. by his legs and dropping him on his 15.
head. Evidence of harm included testimony that L.I. required treatment for a brain bleed
and potential seizures and testimony that L.I.’s phone was taken, coupled with the video
of the group repeatedly beating L.I., taking L.I.’s pants, and removing contents from the
pockets. Appellant argues each action was part of a continuum and should be treated as
inflicting a single harm.
{¶ 37} Injury inflicted in quick succession with a single animus, such as repeated,
rapid gunshots or stabbings, without any “break in a ‘temporal continuum,’” is deemed as
resulting in a single harm for purposes of merger. (Citations omitted.) State v.
Welninski, 2018-Ohio-778, 108 N.E.3d 185, ¶ 92-94 (6th Dist.) (noting rapid gunshots or
multiple stabbings, with a single animus, were subject to merger). In arguing a single
harm, appellant focuses on the repeated physical attacks against L.I.’s person and ignores
the separate and additional harm caused by the aggravated robbery, the harm to L.I.’s
property. See State v. Tellis, 2020-Ohio-6982, 165 N.E.3d 825, ¶ 80 (6th Dist.) (harm to
property is separate and identifiable from the physical harm caused by felonious assault).
{¶ 38} The evidence at trial also supported a finding that felonious assault and
aggravated robbery were committed with separate animus. Where a victim is first
severely beaten, and then robbed, courts have found the two crimes were committed with
a separate animus. See State v. Smith, 3d Dist. Allen No. 1-13-09, 2013-Ohio-3789, ¶ 33,
citing State v. Diggle, 3d Dist. Auglaize No. 2-11-19, 2012-Ohio-1583, ¶ 17. In this case,
Gott punched L.I. in the head as L.I. walked toward the store, arguing with the group
surrounding him, and there was no attempt to take L.I.’s property in conjunction with this 16.
assault. Merriweather and Saxton took over the beating, followed by appellant, dropping
L.I. on his head as he stripped off the pants.
{¶ 39} Considering the evidence adduced at trial, we reject appellant’s
characterization of events as a single attack, producing a single harm, and carried out
with a single animus. The evidence clearly supports finding an initial attack precipitated
by the argument, followed by further attack motivated by a desire to deprive L.I. of his
pants and property. Accordingly, we find no basis for merger of the felonious assault and
aggravated robbery convictions. With no basis for merger, the trial court did not err, and
appellant cannot demonstrate plain error affecting a substantial right and creating a
manifest miscarriage of justice. Appellant’s first assignment of error, accordingly, is not
well-taken.
C. Specifications
{¶ 40} In his second assignment of error, appellant contends the trial court erred in
sentencing him on both specifications, arguing such sentence is contrary to law. In
support, appellant raises separate arguments. First, appellant argues that, because the
predicate sentences merge, the trial court could only impose a sentence for the
specification attached to the offense elected by the prosecutor at the time of sentencing.
As we determined merger did not apply, this argument is without merit.
{¶ 41} In the alternative, appellant argues that separate sentences for each
specification would violate his Double Jeopardy protections under the Fifth Amendment
to the United States Constitution, prohibiting multiple punishments for the same offense. 17.
The gang specifications, however, are sentence enhancements to the predicate offenses
and not separate criminal offenses. See State v. Ford, 128 Ohio St.3d 398, 2011-Ohio765, 945 N.E.2d 498, ¶ 16-17 (construing a firearm specification). Therefore, the double
jeopardy protections and merger, codified at R.C. 2941.25, do not apply to specifications.
Ford at ¶ 16.
{¶ 42} Finally, appellant argues that, based on the circumstances of his case, the
trial court should have sentenced on only one specification. In support, he cites to
authority applying the sentencing provisions under R.C. 2929.14(B), pertinent to firearmrelated specifications. Pursuant to R.C. 2929.14(B), relative to specifications under R.C.
2941.141 (firearm possession essential to affect sentence), R.C. 2941.144 (possession of
automatic firearm or firearm with suppressor), and R.C. 1941.145 (use of firearm to
facilitate the offense), a court may not impose more than one prison term “for felonies
committed as part of the same act.” However, appellant’s sentencing did not fall within
any of these sections under R.C. 2929.14(B).
{¶ 43} Here, the trial court sentenced appellant for a gang specification, as
provided by R.C. 2929.14(G), which contains no limiting provision based on the “same
act.” Pursuant to R.C. 2929.14(G):
If an offender who is convicted of or pleads guilty to a felony that is
an offense of violence also is convicted of or pleads guilty to a specification
of the type described in section 2941.142 of the Revised Code that charges
the offender with having committed the felony while participating in a 18.
criminal gang, the court shall impose upon the offender an additional prison
term of one, two, or three years.
{¶ 44} Upon review of the sentencing provisions, we find no basis for a trial court
to impose a single sentence for multiple gang specification findings, based on a single
course of conduct as argued by appellant. Accordingly, we find appellant’s second
assignment of error not well-taken.
Outcome: For the forgoing reasons, we affirm the judgment of the Lucas County
Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: