Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2016-CR-955 (Criminal Appeal from Common Pleas
MATHIAS H. HECK, JR., BY HEATHER N. JANS, ATTY. REG. NO.
0084470, ASSISTANT PROSECUTING ATTORNEY, MONTGOMERY COUNTY
PROSECUTOR'S OFFICE, APPELLATE DIVISION, MONTGOMERY
COUNTY COURTS BUILDING, 301 WEST THIRD STREET, DAYTON, OHIO
45422 ATTORNEY FOR PLAINTIFF-APPELLEE
ADAMS, ATTY. REG. NO. 0072135, 36 NORTH DETROIT STREET, SUITE
102, XENIA, OHIO 45385 ATTORNEY FOR DEFENDANT-APPELLANT
1} Defendant-appellant Jerry V. Ramey, Jr., appeals
from his conviction and sentence for murder and aggravated
burglary. He contends the trial court erred by failing to
merge the murder and aggravated burglary convictions. He
further contends that the trial court erred in instructing
the jury. Finally, Ramey claims that the convictions are not
supported by the manifest weight of the evidence.
2} We conclude that the trial court did err by
failing to merge the murder and aggravated burglary
convictions. We find Ramey's claims regarding the jury
instructions to be without merit. We further conclude that
his convictions are supported by the evidence in the record.
Accordingly, the judgment of the trial court is affirmed in
part, reversed in part, and remanded for resentencing.
Facts and Procedural History
3} This case arises from the March 21, 2016, death
of Earl Davis, Jr. Davis was in his home located on Strand
Avenue in Dayton when he was strangled to death by Ramey.
Ramey was indicted on one count of murder (proximate cause
aggravated burglary) in violation of R.C. 2903.02(B), one
count of murder (proximate cause felonious assault) in
violation of R.C. 2903.02(B), one count of aggravated
burglary (physical harm) in violation of R.C. 2911.11(A)(1),
and one count of felonious assault (serious harm) in
violation of R.C. 2903.11. A jury trial was conducted over
the course of five days in May 2017. The following facts are
adduced from the trial testimony.
4} Ramey and Davis, who had known each other since
they were young, became close following the death of
Davis's brother in 2013, and they began to spend
significant time together. On March 21, 2016, Ramey and Davis
were drinking at Davis's home. At some point, Ramey went
out to his car, at which time he noticed that $300 that he
had placed in the console of his vehicle was missing. Ramey
went back into the house and asked Davis if he had seen the
money. Davis indicated that he had not. Ramey then returned
to the car to search it again. Unable to find the money,
Ramey returned to the house and asked Davis if he was sure he
had not seen it. According to Ramey, Davis "went off on
him and was verbally abusive. Ramey testified that he
informed Davis he was not accusing Davis of taking the money,
but rather was just asking if he had seen it. Davis then told
Ramey to get out of his house. Ramey stated that Davis was
"real adamant" that Ramey leave his home. Ramey
left the house, but as he was walking to his car, he heard
Davis indicate that he had taken the money. Davis then told
Ramey to stay away from his house.
5} Ramey, after experiencing difficulty with his
vehicle, ultimately parked the car at his grandmother's
home. At this point Ramey decided to walk back to Davis's
home in order to ask him to return the money. Ramey walked
about a quarter of a mile when a friend, who was driving by,
stopped to pick him up. The friend then dropped Ramey at the
entrance to an alley near Davis's home. Ramey walked down
the alley and walked into Davis's home through the back
door. As he entered the home, he saw Davis, who said,
"What's your fat [ass] doing here again?" Ramey
and Davis began to walk toward each other, and Ramey gave
Davis a shove to "get his attention." According to
Ramey, Davis then came toward him and aggressively shoved him
backward into the living room, where Ramey hit the edge of a
loveseat before regaining his balance. Davis continued to
come toward him, and Ramey realized that a fight was
starting. Ramey tried to put himself into an
"advantageous position," and, thus, he lunged back
at Davis, who tumbled over a couch with Ramey ending up on
top of him. The pair fell off the couch and Davis jumped at
Ramey, at which time Ramey pushed Davis back onto the couch.
Ramey again was on top of Davis with his hands around
Davis's throat and a knee on one of Davis's arms.
Davis continued to struggle, but Ramey eventually noticed
that Davis ceased to move, at which time he removed his hand
from Davis's neck. Ramey left the house and went to a
nearby drive-thru store where he purchased a bottle of wine.
Thereafter, Ramey returned to his grandmother's home
where he informed her and his aunt that he had strangled
Davis and that he was going to turn himself in. He changed
his clothes and left them in a pile on the living room floor.
He then had his uncle take him to a local motel, where he
spent the night.
6} After Ramey left her home, his grandmother, Sarah
Wilson, called Davis's mother and informed her that Ramey
had strangled Davis. Wilson then called 911. The police
responded to Davis's home and found his body on the
living room floor. Ramey was arrested the following evening
when he was located at a barber shop. He was belligerent and
resisted attempts to place him in handcuffs. Officers were
eventually able to subdue and handcuff Ramey who, due to his
large size, had to be transported in a police van rather than
7} An autopsy revealed that Davis had injuries to
his neck, as well as hemorrhages in his eyes, consistent with
strangulation. According to the coroner, Davis would have
lost consciousness after 90 seconds, but it likely took four
to six minutes of sustained pressure to the neck to cause his
death. Davis had a blood alcohol level that was approximately
three times the legal limit. At the time of his death, Davis
was 5'10" tall and weighed approximately 144
pounds. Davis's left hand was bandaged as a
result of bone fractures which required the insertion of
multiple metal rods. Davis also had a recent surgery to his
fractured right leg during which a metal rod was inserted to
support the fracture. The coroner discovered a gun in
8} The jury convicted Ramey on all the indicted
charges. The trial court merged the two murder convictions
and the State elected to proceed to sentencing on Count II,
murder (proximate cause felonious assault). The trial court
also merged the conviction for felonious assault with the
murder conviction. The trial court sentenced Ramey to a term
of fifteen years to life for the murder conviction and to a
term of nine years on the aggravated burglary conviction.
Finally, the trial court ordered the two sentences to run
concurrently for a total sentence of fifteen years.
9} Ramey appeals.
10} Ramey's first assignment of error states as
TRIAL COURT ERRED IN NOT ORDERING MERGER OF ALLIED OFFENSES
11} Ramey contends that the trial court erred by
failing to merge the convictions for murder and aggravated
burglary. In support, he argues that they constitute allied
offense of similar import because they share the underlying
element of felonious assault.
12} Section 10, Article I of the Ohio Constitution
prohibits multiple punishments for the same offense. This
prohibition is codified at R.C. 2941.25, which 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.
13} In State v. Ruff, 143 Ohio St.3d 114');">143 Ohio St.3d 114,
2015-Ohio-995');">2015-Ohio-995, 34 N.E.3d 892 (Ruff I), the Ohio
Supreme Court clarified the applicable standard when
determining whether offenses merge as allied offenses of
similar import as follows:
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.
Ruff at ¶ 30.
14} In Ruff I, the Supreme Court, with the
above in mind, concluded that two or more offenses may result
in multiple convictions if any of the following is true:
"(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 I at ¶ 25.
This analysis is dependent upon the facts of each case
because R.C. 2941.25, as noted, focuses on the
defendant's conduct. Id. at ¶ 26.
15} An appellate court applies a de novo standard of
review when evaluating 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, quoting State
v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).
16} Ramey was convicted of murder (as a proximate
cause of felonious assault) in violation of R.C. 2903.02(B),
No person shall cause the death of another as a proximate
result of the offender's committing or attempting to
commit an offense of violence that is a felony of the first
or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code.
17} Felonious assault is proscribed by R.C.
2903.11(A)(1), which states that "no person shall
knowingly * * * cause serious physical harm to another * *
18} Ramey was also convicted of aggravated burglary
in violation of R.C. 2911.11(A)(1), which provides in
(A) No person, by force, stealth, or deception, shall
trespass in an occupied structure * * * when another person
other than an accomplice of the offender is present, with
purpose to commit in the structure * * * any criminal offense
if * * * (1) [t]he offender ...