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State of Ohio v. Malcolm Stall

November 7, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MALCOLM STALL, DEFENDANT-APPELLANT.



Appeal from Crawford County Common Pleas Court Trial Court No. 09-CR-0170

The opinion of the court was delivered by: Preston, J.

Cite as

State v. Stall,

Judgment Reversed and Cause Remanded

Case No. 3-10-12

OPINION

{¶1} Defendant-appellant, Malcom Stall (hereinafter "Stall"), appeals the Crawford County Court of Common Pleas' judgment denying his motion to merge offenses as allied offenses of similar import. For the reasons stated herein, we reverse.

{¶2} The instant case is before us upon remand after the Ohio Supreme Court vacated our original judgment in State v. Lee, et al., 190 Ohio App.3d 581, 2010-Ohio-5672, 943 N.E.2d 602 (hereinafter "Lee I") for our application of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. State v. Stall, 128 Ohio St.3d 501, 2011-Ohio-1960, 946 N.E.2d 756.

{¶3} We set forth the applicable facts and procedural history of the case in Lee I and repeat those herein:

{¶4} At approximately 11:00 p.m., Weese went to the back door and knocked on the door. Mrs. Siclair got up, went to answer the back door, and saw a young man (Weese) with a coat covering his mouth. Weese informed Mrs. Siclair that he had a question for her, at which point Weese pushed the door open with such force that it knocked Mrs. Siclair to the ground, causing her to hit her head on the back of an end table and suffer a concussion. Additionally, Mrs. Siclair stated that after she was pushed and hit her head on the end table, she was also punched in the face, which resulted in a cut to her head that required seven stitches at the hospital.

{¶5} Upon gaining entry in the house, Lee and Weese proceeded to search the house for the $40,000 they believed was hidden in a freezer in the basement. Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that while searching the house, defendants repeatedly demanded that she disclose the location of the money and drugs, and when she did not give them a location, she was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she had breathing due to the duct tape, the pain from being struck repeatedly, along with the fact that she suffers from COPD (chronic obstructive pulmonary disease). During the entire home invasion, Mr. Siclair was asleep in a different room and, because of a severe hearing disability, did not hear anything.

{¶6} Eventually, after cutting the telephone cords to the house, defendants left the home and took with them jewelry and drugs that they had found inside the Siclairs' house. Subsequent to defendants' departure, Mrs. Siclair crawled her way to where her husband was sleeping, woke him up, and used a cell phone to call the police.

{¶7} On November 9, 2009, the Crawford County Grand Jury indicted all three defendants with the following charges:*fn1 aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree; aggravated robbery in violation of R.C. 2911.01(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. Stall was additionally charged with kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree. Lee was indicted in case No. 09-CR-0169 (appellate case No. 3-10-11), Stall was indicted in case No. 09-CR-0170 (appellate case No. 3-10-12), and Weese was indicted in case No. 09-CR-0179 (appellate case No. 3-10-13).

{ΒΆ8} Defendants were arraigned on November 16, 2009. Defendants filed a joint motion to continue their trials on January 8, 2010. Along with the motion to continue, the motion also requested that the trial court issue an order precluding convictions on the counts of aggravated robbery, felonious assault, and kidnapping. Defendants argued in their motion that, pursuant to R.C. 2941.25, the felonious assault and the kidnapping counts were allied offenses of similar import to the aggravated robbery count; and therefore, as to these counts, they could only be convicted of aggravated robbery. The state ...


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