[Cite as State v. Meeks , 2020-Ohio-5050.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 4-20-02

v. JOSHUA A. MEEKS, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Defiance County Common Pleas Court Trial Court No. 19 CR 13669 Judgment Affirmed Date of Decision: October 26, 2020

APPEARANCES: 

### Henry Schaefer for Appellant



### Russell R. Herman for AppelleeCase No. 4-20-02

-2- SHAW, P.J. {¶1} Defendant-appellant, Joshua A. Meeks (“Meeks”), brings this app eal from the January 24, 2020 judgment of the Defiance County Commo n Pleas Court sentencing him to an aggregate, indefinite prison term of 17 to 22 years after Meeks entered guilty pleas to, and was convicted of, Kidnapping in vi olation of R.C. 2905.01(A)(3), a felony of the first degree, and Felonious Assa ult in violation of R.C. 2903.11(A)(1), a felony of the second degree. On appeal, Meeks argues that his convictions for Kidnapping and Felonious Assault should hav e merged for the purposes of sentencing. Background {¶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 viola tion of R.C. 290 5.01(A)(3), a felony of the first degree, (Count 3) Rape in violation of R.C. 2907.0 2(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 vio lation of R.C. 2903.11(A)(1), a felony of the second degree, and (Count 6) Dom estic 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

-3- indicating that Meeks had previously been convicted of Feloniou s 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 wi fe still lived together but they were proceeding through a divorce. Meeks pled not gui lty 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 Violatio n 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 (Coun t 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 cha rges against him and to dismiss the Repeat Violent Offender specifications. Further , the State agreed that

the Felonious Assault and Domestic Violence convictions would m erge 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 volunt ary. The trial court also had the State recite a factual basis for the charges, whic h 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

-4- {¶5} On January 16, 2020, the matter proceeded to sentencing. The S tate recommended a lengthy prison term due to Meeks’ violent crimina l history. It was noted that Meeks had been charged with another Aggravated Assau lt while he was being held in custody as this case was pending. {¶6} Meeks’ attorney then argued that the Felonious Assault and Kidn apping counts should merge. The State objected, contending that if th e State was aware Meeks would be seeking merger of those two charges it would not have dismissed certain other charges or specifications. Nevertheless, the tri al court found that the Felonious Assault and Kidnapping charges did not merge, reasoni ng that there were multiple instances of serious violence against the victim in th is 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 Kidnap ping conviction, and 7 to 10 and 1⁄2 years on the Felonious Assault conviction. The F elonious Assault and Domestic Violence charges were merged for the purposes of s entencing. The

trial court ordered that Meeks’ sentences be served consecutive ly for an aggregate, indefinite prison term of 17 to 22 years. A judgment entry mem orializing 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 sente nce for Kidnapping and Felonious Assault.Case No. 4-20-02

-5- {¶8} In his assignment of error, Meeks contends that the trial court erred by failing to merge his sentences for Kidnapping and Felonious Ass ault.

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 separate ly 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 all ied offenses: 1. In determining whether offenses are allied offenses of simil ar 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 conductCase No. 4-20-02

-6- 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 o ne 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 offense s 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 condu ct. The evidence at trial or during a plea or sentencing hearing wi ll 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 defendan t’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that result s 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 t he following purposes:Case No. 4-20-02

-7- * * * (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 As sault should have merged in this case, particularly since they “share d” 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 offen ses. 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 t hat “in his mind [the Kidnapping] was not a distinct and separate event [from the Fel onious 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 hea ring 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 s erious physical harm.Case No. 4-20-02

-8- {¶16} The State counters by citing to numerous cases wherein Kidnappi ng and Felonious Assault convictions were not merged. See , e.g. , State v. Harmon , 9th Dist. Summit No. 26502, 2013-Ohio-1769. While we acknowledge t he State’s point that cases exist finding that Kidnapping and Felonious Assault would not merge, under the current law, merger inherently involves an examinatio n 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 establi sh 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 sepa rate animus sufficient to sustain separate convictions; however, whe re the restraint is prolonged, the confinement is secretive, or th e movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animu s 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 a part from that involved in the underlying crime, there exists a sepa rate 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 ofCase No. 4-20-02

-9- 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, pro viding fewer facts for the trial court to make a determination regardi ng 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-sente nce investigation, all of which provided a sufficient account of the incidents in ques tion for purposes of reviewing the issue of merger in this case. {¶19} First, the indictment alleged multiple instances of Felonious A ssault

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 toget her. She stated that he accused her of seeing another guy. She stat ed that they were in the bedroom and he grabbed her by the throatCase No. 4-20-02

-10- (larynx area) and was strangling her. She stated he then leg s wept her, knocking her on the bed and slapping her in the face. She stated he then grabbed a wooden walking stick, and began hittin g her in the head, shoulders, and legs. He then grabbed a serrat ed 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 wi th 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 brui se 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 e ntire area from her pelvic region to her knee. Ms. Meeks was taken t o 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 hitti ng her. * * * (Doc. No. 1). {¶20} Third, in addition to the officer’s affidavit in the record, th e State recited a factual narrative at the change of plea hearing, whic h 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 vict im 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 wasCase No. 4-20-02

-11- afraid to prevent because of the incident earlier in the evenin g 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 s trangling incident led to the victim having broken blood vessels (petechiae) in her ey es, and the knife left a straight line scraping on her throat. The sexual assault pur portedly 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 t he trial court had before it, the trial court determined that the convictions for Felonio us Assault and Kidnapping did not merge. {¶22} In our own review of the record, we emphasize that there appear ed 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 hou se 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 h ere of seriousCase No. 4-20-02

-12- 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 thes e 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 n o indication that the restraint in this matter was only to perpetrate a single assaul t. {¶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 act s. 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 w ere multiple acts reflected in the record of this case, which the trial court cou ld have properly determined were separate and distinct. For all of these reason s, Meeks’ assignment

of error is overruled.Case No. 4-20-02

-13- Conclusion {¶25} For the foregoing reasons the assignment of error is overruled and the judgment of the Defiance County Common Pleas Court is affirmed. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr